Petition for Writ of Certiorari — Incorporated Village of Roslyn Harbor v. Jewish Reconstructionist Synagogue of North Shore, Inc.

Supreme Court brief1976

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To-IUVS

LIBRARY ae.

In THE

Supreme Court of the United

OCTOBER TERM, 1975

THE IncorporaTED VILLAGE OF Rostyn Harpor, Rosert

Liste, Jon#n Yost, Jonn Conus, FRANK FAHNESTOCK

and Wiiu1aAm DENEERGAARD, constituting the Board of

Trustees of the Incorporated Village of Roslyn Harbor,

Petitioner,

against

THE JEWISH RECONSTRUCTIONIST SYNAGCGUE OF

THE NortH Suore, Inc.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

JoHN J. Barnosky

Counsel for Petitioner

374 Hillside Avenue

Williston Park, N.Y. 11596

(516) 741-1111

FarRELL, Fritz, Pratt, CAEMMERER

& Cirary, P.C.

May 14, 1976.

oi atcyate rica seeeneniatane ,

ERY RAED TELE BOER BLA 9 FE IE Eot ALLO AE IRE PN A IAHR REN BIE SUE A 8 ts SERS ETE tS

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PAGE

REO eRe TUL OT MME Set ea 8 Ap 1

PUI ics Wet tr ace uk a oe eee es 2

a A ene 3

Statutory Authorities ..................ccccececee 3

Statement of the Case: Facts ................0.5. 4

A. The Village and its Zoning Ordinance ...... 4

eT here ere 6

C. The Subject Properties ................... 6

D. Application to Board of Appeals ........... 7

K. Constitutional Issues Raised and Disposed of 8

BUG sok th cecian aia cia dae 13

1. The Issue Arises Under the First Amendment 14

2. The Issue Affects Nearly Every State and

Locality in the Nation ..................... 14

3. The Issue Has Never Been Passed upon by

ee SE TD iia ei wee oskck 14

4. The Issue is the Subject of Conflicting Deci-

oe 15

do. The Issue Involves an Area of Law (Zoning)

Which Is Increasingly and Properly Being

Subjected to Supreme Court Scrutiny ...... 18

Summary and Conclusion .................ccece00- 18

State Court Judgments and Opinions .............. 20

INDEX

PAGE

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.) la

Appendix 2, Judgment of Nassau County Supreme

Court, Granted and Entered September 10, 1973,

Declaring Zoning Ordinance Invalid .......... 13a

Appendix 3, Order of Appellate Division, Second De-

partment, dated September 6, 1974, Affirming

Without Opinion the Judgment of the Nassau

County Supreme Court ...................... l4a

Appendix 4, Decision Slip of Appellate Division, Sec-

ond Department, dated September 6, 1974 ..... 17a

Appendix 5, Prevailing Concurring and Dissenting

Opinions of New York State Court of Appeals,

dated December 4, 1975 ...................... 18a

Appendix 6, Order of New York State Court of Ap-

peals, dated December 4, 1975, Affirming Order

of Appellate Division, Second Department ...... 36a

Appendix 7, Order of New York State Court of Ap-

peals, dated March 30, 1976, Denying Village’s

Motion for Reargument or in the Alternative

Amendment of the Remittitur ................ 38a

Appendix 8, Sections 11-2.2, 11-21.14, and 11-2.30 of

the Building Zone Ordinance of the Incorporated

Village of Roslyn Harbor, Nassau County, New

pRB S bGncly 9 cr ee rae eee ree oe 39a

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INDEX iii

Case CITATIONS

PAGE

Belle Terre v. Boraas, 416 U.S. 1 ........--- ee eee 4,15, 18

City of New Orleans v. Dukes, 501 F2d 706; prob.

jurisd. noted 4/14/75, 43 LW 3550 ............ 15

Corporation of Presiding Bishop of Church of Latter-

Day Saints v. City of Porterville, 90 Cal. App.

2d 956, 203 P2d 823; App. dsmd. 338 US 805 .... 15

Euclid v. Ambler Realty Co., 272 US 365 ........... 14

Gribbs v. American Mini Theaters, Inc., CA, 6th Cir.

6/16/75; cert. granted 10/20/75, 44 LW 3234 ... 15

Jewish Reconstructionist Society v. Levitam, 41 AD2d

587, 339 NYS2d 274; affd 34 NY2d 827, 359

I aie k sc haces dvecenwenesssodeaedeasss 8

Matter of Westchester Reform Temple v. Brown, 22

NY2d 488, 293 NYS2d 297 ........--+eeeeee 9, 10, 11

St. James Temple of A.O.H. Church of God v. Board

of Appeals, 100 Ill, App 2d 302, 241 NE2d 525,

cert. den. 395 US 946 ..........ccccceeercceees 15

Seattle Trust Co. v. Roberge, 278 US 116........... 14, 15

MiscELLANEOUS AUTHORITIES

Anderson, Robert M, ‘‘American Law of Zoning”’

(UDG TEA) nn nincsccncccccccssccasessvececess 16

Note: ‘Churches and Zoning’’, 78 Harvard Law Re-

view 1428 (1957) .......-e cece cence eee e renee 18

Rathkopf, Arden H., ‘‘The Law of Zoning and Plan-

BIMM™? . oc ccccccccccccccccccscsccvossesecs 16, 17, 18

Mages ire MERRIER EL NIE RRS as

BLEED THROUGH

In THE

Supreme Court of the United States

OCTOBER TERM, 1975

Tue IncorporaTeD ViLLaGE oF Rostyn Harsor, Roper

Liste, Joun Yost, JoHn Couiins, Frank FAHNESTOCK

and WituiAM pDENEERGAARD, constituting the Board of

Trustees of the Incorporated Village of Roslyn Harbor,

Petitioner,

against

THe JEWISH RECONSTRUCTIONIST SYNAGOGUE OF

THE NortH SuHore, INc.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Opinions Below

1. In the New York State Court of Appeals three

opinions were rendered, none of which commanded a

majority of the Court. They are reported at 38 NY2d 283,

379 NYS2d 747, and are annexed hereto as Appendix 4.

The opinion of Judge Fuchsberg, concurred in by

Judges Gabrielli and Cooke, appears at 38 NY2d 289,

379 NYS2d 750.

The concurring opinion of Chief Judge Breite!, con-

curred in by Judge Wachtler, appears at 38 NY2d 291,

379 NYS2d 756.

The dissenting opinion of Judge Jones, concurred in

by Judge Jasen, appears at 38 NY2d 292, 379 NYS2d

757.

2. No opinion was rendered by the New York State Ap-

pellate Division, Second Department. A copy of its deci-

sion slip, published in 45 AD2d 988, 359 NYS2d 251 (Case

2), is attached as Appendix 5.

3. The memorandum decision of the New York State

Supreme Court, Nassau County, (Meade, J.) dated July

12, 1973, was not reported; a copy is annexed hereto as

Appendix 1.

Jurisdiction

1. The order of the New York State Court of Appeals

sought to be reviewed was dated and entered in the office

of the Clerk of the Court of Appeals on December 4, 1975

(Appendix 6).

2. Petitioner’s motion for reargument or in the alterna-

tive, amendment of the remittitur, was denied by order of

the New York State Court of Appeals dated March 30,

1976 (Appendix 7).

3. Jurisdiction of the United States Supreme Court to

review the final order of the New York State Court of

Appeals is conferred by 28 U.S.C. 1257(3) in that

(a) The validity of a state statute (local zoning

ordinance) is drawn in question on the ground of its

being repugnant to the Constitu’ion of the United

States (First Amendment) ; and

(b) Respondent synagogue has successfully and

specially claimed under the Constitution of the United

States (First Amendment) a right, privilege and im-

munity which exempts it from the otherwise generally

applicable provisions of petitioner’s zoning ordinance.

BLEED THROUGH

Questions Presented

1. General Question: Are churches constitutionally en-

titled to special treatment under municipal zoning ordi-

nances?

The Courts below answered “Yes”.

2. Specific Question: Does a zoning ordinance provision

establishing a non-variable minimum side yard of 100 feet

for a church building infringe upon the religious freedom

of respondent, which purchased an existing non-conform-

ing dwelling with knowledge of the restriction and with in-

tent to use the structure for its synagogue building?

The Courts below answered ‘‘ Yes”.

Statutory Authorities

1. Provisions from the U.S. Constitution.

First Amendment:

‘‘Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; * * °.”’

9. Provisions from the Building Zone Ordinance of the

Incorporated Village of Roslyn Harbor, Nassau County,

New York.

The pertinent sections of the Roslyn Harbor Zoning Or-

dinance are Section 11-2.2, Section 11-2.14 and Section

11-2.30. The text of those sections is set forth in Appendix

8 attached hereto.

Statement of the Case: Facts

A. The Village and Its Zoning Ordineace.

Roslyn Harbor is a small, residential village improved

primarily with expensive single-family residences on mini-

mum one-acre plots. Incorporated in 1931, it has a 1970

population of 1,125 in an area of 630 acres, 94% of which

is zoned for one-acre residential use (52)."

Its open, low-density character is further enhanced by

the presence in the village of the Engineer’s Club, a 150

acre golf club established in 1911 (52, 55), and a newly

established Nassau County Park and Nature Preserve con-

sisting of 140 acres (52). There is one church in the village

which has been there since before 1900; its present building

was erected in 1917 (54). There are approximately 250

homes built on approximately 305 available acres (53) ; the

value of each ranges between $80,000 and $200,000 (54).

In contrast to its surrounding communities, Roslyn

Harbor’s population of 1,125 persons is small. For ex-

ample, the 1970 populations of the immediately surround-

ing communities are as follows:

IE retrain eaic en vce eve os 4,274

EE Cal sae rend yausnewe ce 8,656

EY shee au wine Ker hace hu 11,208

PN digs caweedkdus aa wav 4,486

Similarly, the more remote communities which contribute

most of respondent’s congregation also have substantially

larger populations:

ED ee eae aa: 8,541

PONG WOOO nc ccc ccennn 22,040

re ea br eer et cas 28,720

* Unless otherwise indicated numbers in parentheses refer to

pages in the Record on Appeal to the New York Court of Appeals.

pointe he" reSTAR IS TNR N

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As pointed out by Village Clerk Halperin at the trial, the

zoning practices and policies of the village over the years

have been designed to preserve and protect the residential

character of the village whose residents ‘‘have sought

escape from a frenetic city atmosphere’’, and to preserve

their mode of living and the investment in their homes in

the village which they made ‘‘in the hope of finding seclu-

sion and quiet’’ (7).

This Court’s recent description of the Village of Belle

Terre applies equally to Roslyn Harbor:

‘A quiet place where yards are wide, people few, and

motor vehicles restricted are legitimate guidelines in a

land use project addressed to family needs. This goal

is a permissible one * * *. The police power is not

confined to elimination of filth, stench, and unhealthy

places. It is ample to lay out zones where family

values, youth values, and the blessings of quiet seclu-

sion, and clean air make the area a sanctuary for peo-

ple.” (Village of Belle Terre v. Boraas, 416 U.S. 1, at

p. 9)

Similar objectives are sought by Roslyn Harbor’s original

zoning ordinance which was enacted in 1931 and amended

in 1950 into substantially its present form (51). Churches,

schools and clubs are authorized by the ordinance in any

zoning district of the village as special exception uses

(§ 11-2.14), provided that the Board of Appeals finds that

they meet certain standards which are common to most

zoning ordinances (4 11-2.30). However, the Board of

Trustees did provide, legislatively, that a building for a

church, school or club use must be set back 100 feet from

the side and rear property lines and 150 feet from the street

(§ 11-2.14). It is this provision with respect to the side

yard which presents the real issue in this case.

B. The Respondent.

Respondent Jewish Reconstructionist Synagogue of the

North Shore, Inc., is a religious corporation with approx-

imately 125 family members (7) having an average ap-

proximately of two children each (8) which arithmetically

would produce a total membership of approximately 500.

Organized “about 7 or 8 years ago” (3), respondent

presently conducts religious services on alternate Fridays

and Saturdays, and maintains a youth program, religious

education classes and various independent adult programs

(3).

In the past respondent has used churches of other de-

nominations located in Great Neck, Manhasset, Glen Cove

and Searingtown (3, 7,9). Of its 125 family members, ap-

parently only four families, or less than 4%, live in the

Village of Roslyn Harbor. Most of the remainder live in

Great Neck (27 families), in Roslyn-Roslyn Heights-

Roslyn Estates (55 families), and scattered in other areas

on the North Shore of Long Island (27 families).

In late 1970 respondent purchased in the village two con-

tiguous single-family residences “for the purpose of join-

ing them into a single parcel” of 2.4 acres (58a-59a), on

which to establish its synagogue facilities. It then applied

to the village Zoning Board of Appeals for a permit to use

the larger residence for conducting religious services, for

operating a Hebrew School, and for conducting meetings

of members of the synagogue, and to use the smaller resi-

dence as living quarters for the Rabbi or for the Director

of the Hebrew School (59a).

C. The Subject Properties.

The two residential properties purchased by respondent

were originally part of a single larger estate, the proposed

synagogue building being a portion of the original estate

house, and the proposed Rabbi’s or the Director’s dwelling

PRESS I SE EL IONS I EE LOL LOLI OL EIS 2 Pe =

ted

BLEED THROUGH

being a former gate cottage. In 1954 an application to sub-

divide the 71% acre estate into six single family residential

plots was approved by the Planning Board, which noted

that it was ‘‘for the best interest and general welfare of the

village that said property should be broken up into private

residential esiate type lots” (emph. supp.) and further

required removal of the wings of the “larger existing main

dwelling” so that it would not be in violation of side yard

requirements.

As a result of the subdivision, the former estate house

was left as a smaller residential structure having a 29.7

foot side yard on its southeasterly corner (25). It is that

building which is now sought to be used for religious

services, the Hebrew School, and meetings of respondent’s

members. The present owners of the four other lots in this

six lot subdivision strenuously objected at the hearing and

intervened in the proceeding brought to review the Zoning

Board’s decision.

D. Application to Board of Appeals.

Notwithstanding the prior subdivision for residential

purposes, and with knowledge that the existing structure

did not meet the 100 foot side yard mandated by the

ordinance for a church building, respondent nonetheless

purchased the premises and then applied to the Board of

Appeals for a special exception permit under § 11-2.14 so as

to permit their use for synagogue purposes. In conjunction

therewith, respondent sought certain variances, including

a variance for the main building which did not meet the

100 foot side yard requirement.

At no time did respondent claim it suffered from any

hardship; nor did it assert any inability to locate elsewhere

in the village or in one of the larger surrounding com-

munities where the bulk of its congregation resides.

Public hearings were held on three evenings, with expert

witnesses called, and the four immediate neighbors all ap-

- — ppt eee

BR 6 REPL FESR TEL RE EY EN POLE SI IE SRNL EPI

pearing by counsel. There was direct and cross-examina-

tion of witnesses, objections, motions and rulings in much

the same manner as a court trial.

After memoranda were submitted by counsel, the Board

of Appeals finally held that it lacked the power to vary the

100 foot side yard requirement. Since that requested

variance was essential to respondent’s application which

hinged upon use of the existing building, only 29.7 feet

from the property line, for synagogue purposes, the Board

denied the application (108a-118a). Respondent instituted

a review proceeding which ultimately confirmed the Board’s

interpretation that it could not vary the ordinance’s 100

foot side yard requirement (Jewish Reconstructionist So-

ciety v. Levitan; decision of Meade, J. dated January 14,

1972, N.O.R.; affirmed with two justices dissenting, 41 AD

2d 537, 339 NYS 2d 274; affirmed unanimously with a

memorandum, 34 NY 2d 827, 359 NYS 2d 55).

Thus, in that earlier litigation the zoning ordinance was

judicially construed to include a non-variable requirement

throughout the village that any building to be used for

church, school, or club purposes must be situated at least 100

feet from its property line.

E. Constitutional Issues Raised and Disposed of.

1. In the Trial Court. Respondent brought a declara-

tory judgment action claiming that the non-variable side

yard requirement and the village’s failure to grant it a

use permit for synagogue purposes, notwithstanding the

29 foot actual side yard, infringed its constitutional rights.

In paragraph 2 of its complaint, respondent alleged that

the restrictions of the ordinance, including the 100 foot side

yard requirement, “as applied to churches, schools and

synagogues in general, and as applied to the Temple Prop-

erty and plaintiff’s application to use the same as afore-

said, are unconstitutional, illegal, invalid and void” (44a-

52a).

BLEED THROUGH

In substance respondent alleged that simply because re-

spondent was a religious organization the village had no

right to apply to its property the usual zoning considera-

tions of “health, safety, morals, convenience and general

welfare” (44a-45a), “harmony with the general purpose

and intent of the zoning ordinance” (45a-46a), conform-

ity to “the comprehensive plan and design as set forth

in the zoning ordinance’’ (46a), possible depreciation of

property values (46a-47a), possible alteration of the essen-

tial character of the neighborhood (47a), detrimental effect

on public convenience and welfare (48a), feasibility of

the use in a less restricted district (48a), accessibility

for fire and police protection, access of light and air, and

hazards from fire (49a), traffic problems and transporta-

tion requirements and facilities (49a-50a), or reports from

the Bureau of Fire Prevention as to fire hazards and

from the Chief of Police as to traffie (50a-5la).

In its “Wxererore” clause, respondent demanded judg-

ment declaring that the pertinent sections of the ordinance

“as applied to churches, schools and synagogues with

particular reference to [respondent’s] property, as afore-

said, are void, illegal, unconstitutional and invalid.” (53a)

In the court of first instance, Justice Meade addressed

himself directly to the constitutionality of the village’s

zoning ordinance restrictions when applied to churches and

synagogues. After reviewing the facts (7a-14a), he turned

to respondent’s constitutional attack on the zoning ordi-

nance (l4a-l5a), noting that respondent “predicates its

arguments upon the fact that it is a religious body and as

such enjoys a most favored posititon” (15a), and quoting

from Matter of Westchester Reform Temple v. Brown,

22 NY2d 488, at p. 496:

“Religious structures enjoy a constitutionally pro-

tected status which severely curtails the permissible

extent of governmental regulation in the name of

police powers, but the power of regulation has not

been altogether obliterated.”

RAPE TARR NOE DEE Lad

Then, after reviewing the village’s position (16a-17a),

the trial court concluded that the ordinance in question is

unconstitutional, stating:

“The presumption of legality applying to the legis-

lative enactment of defendant trustees as well as the

factors urged by them as motivating the non-variable

restrictions imposed in the ordinance are outweighed

by the constitutional protection afforded a religious

organization such as the plaintiff (Matter of West-

chester Reform Temple v. Brown, supra, at p. 496).

The fact that the plaintiff’s members are in the main

non-residents of the Village does not justify the ap-

plication of more restrictive standards than those

affecting residents. It is the character of the plaintiff

as a religious body that controls and not the places of

residence of its members. Neither are the other facts

advanced by defendants as reasons supporting its

enactment of such consequence as to constitute a

circumstance justifying denial of plaintiff’s right to

locate in the district of its choice. Finally, the non-

variable side-yard requirement of 100 feet is not

reasonable when applied here.

It is the opinion of this Court that the existing ordi-

nance of the defendants, as it applies to the plaintiff,

ts an unconstitutional enactment.” (18a-19a; emph.

supp.)

In its judgment, the Nassau County Supreme Court

simply declared the offending sections of the ordinance

“unconstitutional insofar as they prevent the Village Board

of Appeals from granting to plaintiff a permit to use and

occupy [the land and existing building] for synagogue

purposes.” (6a).

2. In the Appellate Division. The Appellate Division,

Second Department, simply affirmed without opinion

(135a).

MORTAL OPE LO ET OR a

BLEED THROUGH

3. In the New York Court of Appeals. The three opin-

ions in the Court of Appeals (Appendix 5, attached)

focused squarely on the central constitutional issue: the

extent to which churches are subject to zoning restrictions.

The prevailing opinion, in effect, held that the village’s

ordinance was constitutionally invalid because it required

a minimum of 100 feet between a church building and

neighboring properties. Although he acknowledged the

“growing support for the view that churches ought to be

subject to the same zoning considerations which are per-

mitted to govern applications from other entities” (38

NY2d at p. 287), Judge Fuchsberg in his prevailing opin-

ion held the village’s 100 foot side yard requirement in-

valid because “the peculiarly pre-eminent status of reli-

gious institutions under the First Amendment provision

for free exercise of religion remains an important factor

entering into the balance that also weighs the needs of

desires of the community.” (38 NY2d at p. 288).

Following prior case law in New York, Judge Fuchs-

berg held that the right to free exercise of religion as

manifested in the erection or use of a structure, must in

the case of an irreconcilable conflict override the public

interests in promoting health, safety and welfare. The

core of his opinion is found in the following quotation from

Matter of Westchester Reform Temple v. Brown, 22 NY2d

488, at pp. 496-497:

‘We have not said that considerations of the sur-

rounding area and potential traffic hazards are unre-

lated to the public health, safety or welfare when

religious structures are involved. We have simply

said that they are outweighed by the constitutional

prohibition against the abridgment of the free exercise

of religion and by the public benefit and welfare which

is itself an attribute of religious worship in a com-

munity. If the community can, consistent with this

policy, both comply with the constitutional require-

ment and, at the same time, avoid or minimize, insofar

as practicable, traffic hazards or other potential detri-

ments bearing a substantial relation to the health,

safety and welfare of the community, there is no har-

rier to its doing so. Nevertheless, we have already

decided in the Rochester case that, where an irrecon-

cilable conflict exists between the right to erect a re-

ligious structure and the potential hazards of traffic

or diminution in value, the latter must yield to the

former.” (emph. supp.)

Judge Jones dissented (with Judge Jasen concurring)

in an opinion which crystallizes the constitutional issues

posed by this case. His penultimate paragraph concisely

states the issue and his view of a proper disposition:

‘*Given the reasonable expectation that use of the

premises on Glenwood Road for synagogue purposes

will surely increase vehicular traffic in the area and

create parking problems, not only endangering the

comfort and convenience of residents of the community

but also creating hazards to public health and safety,

we cannot conclude that there are constitutional or

other legal considerations which preclude the applica-

tion of what to us are the reasonable provisions of this

zoning ordinance to this property owner in the cir-

cumstances presented in this record. Rather we would

conclude that there is a reasonable relationship be-

tween the zoning regulation as sought to be applied

here and the public health, safety and general welfare

of the Village of Roslyn Harbor, and that the applica-

tion of such regulation would not infringe the legiti-

mate interests of respondent synagogue. The time

has come when our court should forthrightly face the

legal, economic and social implications of continwed

slavish adherence to the outmoded doctrine that

churches and synagogues are wholly tmmune from

even reasonable zoning regulation.’’ (38 NY2d at p.

295; emph. supp.)

a a es raed 4

BLEED THROUGH

Chief Judge Breitel, with Judge Wachtler agreeing, con-

curred in the result, though not the reasoning of Judge

Fuchsberg’s prevailing opinion. Chief Judge Breitel

agreed with Judge Jones on the principle involved, stating

that

“The law should move in the direction of requiring

even religious insitutions to accommodate to factors

directly relevant to public health, safety or welfare,

inclusive of fire and similar emergency risks, and

traffic conditions insofar as they involve public

safety. 38 NY2d at pp. 291-2 [citations]. * * * It is

the all but conclusive presumption that considerations

of public health, safety and welfare are always out-

weighed as some of the precedents suggest, by the

policy favoring religious structures that I find objec-

tionable. Hence, my rejection of the absolute view ex-

pressed in the majority opinion * * *.” (38 NY2d at

pp. 291-2).

Nevertheless, Chief Judge Breitel voted to affirm because

“Tt is likely that the effect, if not the purpose of the

ordinance is exclusionary, without compensating values

to sustain a public purpose related to public safety

and public welfare. The overall impact of the restric-

tions in the ordinance as it now reads does not ac-

commodate sufficiently to the priorities, albeit it lim-

ited, that should be accorded to religious institutions.”

(38 NY2d at p. 292).

With these divided views, the Court of Appeals affirmed

(Appendix 6).

Argument

Certiorari should be granted because this case turns on

an issue of religious freedom which:

(1) arises under the First Amendment;

senimiaseemeniiameniaiels 3

(2) affects nearly every state and locality in the na-

tion ;

(3) has never been passed upon by the Supreme Court;

(4) is the subject of conflicting decisions in the states;

and

(5) involves an area of law (zoning) which is increas-

ingly and properly being subjected to Supreme

Court scrutiny.

We shall discuss each of these points separately.

1. The Issue Arises Under the First Amendment

Respondent has claimed, and the courts below have held,

that special leniency, if not complete immunity, must be

granted to all churches, simply because of the freedom of

religion guarantee of the First Amendment.

2. The Issue Affects Nearly Every State and Locality in

the Nation.

Zoning ordinances, like churches, are found in every part

of the nation. 1s a result, nearly all communities today

have zoning ordinances, many of them with special re-

strictions and regulations affecting church use of land and

buildings. Guidelines are therefore appropriate for a

proper balance between the constitutional rights of religious

institutions and the community’s need for reasonable land

use and safety regulation under the police power.

3. The Issue Has Never Been Passed Upon by the Supreme

Court.

None of the few prior decisions of the Supreme Court on

zoning have involved churches or religious freedom. In

Euclid v. Ambler Realty Co., 272 U.S. 365, this Court in

1926 upheld the general concept of zoning as a proper

exercise of the police power. Two years later, in Seattle

SE Rf CRNA Ne LAE TEP Wee NEUE ROT RA TIERS ISG SERRE RENTED INE AIS LIE IT, I NIRS IS

BLEED THROUGH

Trust Co. v. Roberge, 278 U.S. 116, an ordinance requiring

consent to a regulation by the surrounding property owners

was stricken as a denial of due process.

In two cases the Supreme Court declined to review lower

court zoning decisions which involved churches. One of

them upheld a zoning ordinance which excluded churches

from a residential zone (Corporation of Presiding Bishop

of Church of Latter-Day Saints v. City of Porterville, 90

Cal. App. 2d 956, 203 P2d 823, App. dsmd. 338 U.S. 805).

The other sustained the denial to a church of a special use

permit in a business zone (St. James Temple of A.O.H.

Church of God v. Board of Appeals, 100 Ill. App. 2d 302,

241 NE2d 525, cert.den. 395 U.S. 946).

In both cases churches had been denied permission to

operate because of zoning restrictions, and this Court did

not interfere, notwithstanding the claims of restraint on

religious freedom. Those decisions, however, run counter

to the New York decision below, which all but exempts

churches from zoning controls.

Not until 1974 in Belle Terre v. Boraas, 416 U.S. 1, did

this Court take up another zoning case. But neither that

ease, nor the few decisions since, nor Gribbs v. American

Mini Theaters, Inc. (cert. granted October 20, 1975; argued

March 24, 1976), nor City of New Orleans v. Dukes

(probable jurisdiction noted April 14, 1975; argued

November 11, 1975), involved churches or freedom of

religion concepts.

The impact of zoning on churches, therefore, is a novel

question for this Court.

4. The Issue Is the Subject of Conflicting Decisions in

the States.

Some state courts permit zoning ordinances to regulate

churches in the same manner as other properties. Others,

as in New York, view the First Amendment as requiring

= ig ECE EIEIO OIE SAAN CLLEGE DLL : PS LY, ? E iamiliens

of a municipality a virtually “hands off’’ zoning policy for

churches. This conflict in view has been the subject of

comment by text writers.

Professor Anderson in his ‘‘American Law of Zoning’’

(1968 Edition) points out that

‘*a church or other place of worship has characteristics

which present problems that are the legitimate concern

of zoning regulation. A church generates traffic and

creates a parking problem. This can injure a residen-

tial neighborhood. A religious use, being nontaxable,

results in a shift of the tax burden to cther land in the

community or area. If religious use is broadly defined,

it may include schools and recreational facilities which

produce traffic, noise, and litter injurious to a residen-

tial district. Thus, religious uses present a complex

zoning problem. They contribute to the public wel-

fare, but they are potentially a disturbing factor m a

residential neighborhood. They enjoy some immunity

from regulation but they are not totally beyond the

reach of municipal zoning power. The rules represent

a judicial attempt to accommodate the benefits of reli-

gious use to the requirements of effective land-use

eontrol.’? (Emph. supp.; Anderson, § 9.19, p. 147)

Anderson also notes:

‘‘Because religious uses are capable of endangering

not only the comfort and convenience of the com-

munity, but also of creating hazards to public health

and safety, it is highly important that the dimensions

of such use be clearly established.’’ (Anderson, § 9.25,

p. 162)

Similarly, the new edition of ‘‘The Law of Zoning and

Planning’’ by Arden H. Rathkopf also raises questions

about churches in residential areas. He points out that

while the majority view prohibits exclusion of churches

HI SRNR Dl LOADER EH IN NST! AR ORT HEP ATTN: ITI ML SEE SVT IRE MONET I 28 INARA MR SESS SAEAL IDS |

BLEED THROUGH

from residential areas, there is a minority view

‘*that churches are subject to zoning ordinances in the

same manner and to the same extent as other uses, and

that if the inclusion of churches in residential districts

does not fit the comprehensive plan established by the

ordinance, they may validly be prohibited therein as

other uses legislatively found incompatible are ex-

cluded therefrom.’’ (Rathkopf, pp. 19-4 and 19-5).

As authority, Rathkopf cites cases from California, Con-

necticut and Oregon. Florida also permits exclusion of

churches (See Anderson, § 9.19, pp. 152-3). Commenting

upon this minority point of view, Rathkopf states:

‘‘There is something to be said for the minority point

of view. The traditional concept of a small church

serving the immediately neighboring community un-

doubtedly had something to do with the idea that such

use was an integral part of community life in ‘the best

and most open localities.’ However, the establishment

of a modern church, not dependent upon local residents

as its communicants, and in some instances attracting

people from far distances, the inevitable use of the

automobile in connection therewith and the increased

activities of the church for social and community func-

tions having only a remote connection with its primary

function, all present a different picture.

Modern land uses customarily set aside in the very

type community in which the question is most often

raised, highclassed residential areas on large minimum

plots. These have been upheld principally on the

ground that such large plots and single family resi-

dences thereon are in furtherance of the purposes of

the police power which justifies zoning. The courts

have pointed out that there is nothing which prevents

zoning a community entirely residential. They have

pointed out that there are sociological gains in provid-

ing exclusive districts as long as less restricted dis-

MING GMB RS \ RE LOE

tricts also exist. While the impact of a traditional

small place for worship upon such an area would be

de minimus if it existed at all, the impact of a modern

church with its parking lot, assembly rooms and week-

long activities is entirely different.’’ (Rathkopf, p.

19-8)

See also Note: ‘‘Churches and Zoning’’, 78 Harvard

Law Review 1428 (1957).

5. The Issue Involves an Area of Law (Zoning) Which Is

Increasingly and Properly Being Subjected to Supreme

Court Scrutiny.

As indicated above, in the 1920’s the Supreme Court

wrote two opinions on the validity of local zoning ordi-

nances. Nearly 50 years passed, however, before the Court

again addressed itself to the constitutional merits of a local

zoning ordinance. Since the Belle Terre decision in 1974,

however, the Court has clearly recognized the need for

national constitutional standards in the zoning field, and

has reviewed at least three other cases which presented

significant questions in this exploding field of law. While

the proper relationship between church and state has been

the subject of many other decisions by the Supreme Court,

none yet has addressed itself to the fundamental questions

raised when a municipality seeks by zoning to regulate its

churches. This is such a case; its issue is clearly presented ;

it calls for decision now.

Summary and Conclusion

This case presents a confrontation between First Amend-

ment religious freedom and the police power of a mu-

nicipality to regulate land use through its zoning ordinance.

The specific regulation in question is a non-variable 100

foot side yard requirement for a church building. With-

out such a yard, the Village Board of Appeals was pro-

WT WAT A ey eigen, ove LTE YS PER AMED CAS ANA LT ENT OE *

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hibited by the ordinance from granting respondent the

special exception permit it needed for its proposed syna-

gogue operation.

We have, then, on one hand a legislative prohibition of

this church’s use, grounded in a public policy which is ra-

tionally related to the Village’s objectives of maintaining

a residential community of quiet seclusion, as free as pos-

sible from congestion, traffic, air pollution and noise. On

the other hand, we have a synagogue insisting that its reli-

gious freedom under the First Amendment overrides the

Village’s requirement for a 100 foot side yard, and, indeed,

supersedes all restrictions in the applicable ordinance.

Below, the New York State Court of Appeals split three

ways over the issue, with all judges recognizing at least a

‘‘srowing support for the view that churches ought to be

subject to the same zoning considerations which are per-

mitted to govern applications from other entities.” (38

NY2d at p. 287).

The stage is set, therefore, for the Supreme Court to

settle these conflicting views and determine to what extent

the First Amendment prevents municipal imposition on

churches of zoning requirements which are compatible with

the permissible and rationally implemented policies of a

community.

A writ of certiorari should issue to review the order and

opinion of the New York Court of Appeals.

Respectfully submitted,

JoHN J. BARNOoSKY

Counsel for Petitioner

374 Hillside Avenze

Williston Park, N.Y. 11596

(516) 741-1111

FarrELL, Fritz, Prart, CAEMMERER

& Creary, P.C.

State Court Judgments and Opinions.

Appended hereto are the following judgments, orders

and opinions rendered in the New York State courts below:

Appendix 1—Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973

(Meade, J.).

Appendix 2—Judgment of Nassau County Supreme

Court granted and entered September 10,

1973, declaring zoning ordinance invalid.

Appendix 3—Order of Appellate Division, Second De-

partment, dated September 6, 1974, affirm-

ing without opinion the judgment of the

Nassau County Supreme Court.

Appendix 4—Decision slip of Appellate Division, Sec-

ond Department, dated September 6, 1974.

Appendix 5—Prevailing, concurring and dissenting opin-

ions of New York State Court of Appeals,

dated December 4, 1975.

Appendix 6—Order of New York State Court of Ap-

peals dated December 4, 1975, affirming

order of Appellate Division, Second De-

partment.

Appendix 7—Order of New York State Court of Ap-

peals dated March 30, 1976, denying Vil-

lage’s motion for reargument or in the

alternative amendment of the remittitur.

Appendix 8—Sections 11-2.2, 11-21.14, and 11-2.30 of the

Building Zone Ordinance of the Incorpo-

rated Village of Roslyn Harbor, Nassau

County, New York.

BLEED THROUGH

1) BOOED me

Berens A MP oh

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

SUPREME COURT OF THE STATE OF NEW YORK

County oF Nassau

JEWISH RECONSTRUCTIONIST SYNAGOGUE OF

THe Nortx SxHoreg, Inc.,

Plaintiff,

against

THE INCORPORATED VILLAGE OF Rostyn Harpor and Rospert

Liste, Jonn Yost, Jonn Couuins, Frank FauNestock

and Witu1am DeNEeErGaarp, constituting the Board of

Trustees of the Incorporated Village of Roslyn Harbor,

Defendants.

Dated: July 12, 1973

Index No. 2626/72

Cal. No. S-5384

ScHIFFMACHER, CULLEN, RocH¥Forp & Farre.L, Esqs.,

Attorneys for Plaintiff

98 Cutter Mill Road

Great Neck, New York 11021

Pratt, CAEMMERER & CLEARY

Professional Corporation

Attorneys for Defendant

195 Willis Avenue

Mineola, New York 11501

Plaintiff seeks a judgment declaring certain provisions

of defendants’ Zoning Ordinance unconstitutional as ap-

Appendiz 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

plied to churches, schools and synagogues, determining the

rights of the parties and directing the defendants’ Board

of Appeals to issue a permit.

Plaintiff, a religious corporation. owns about 2% acres

in a Residence A District of the Village. On its property

is a residence set back 275 feet from the street, 29.7 feet

from one sideline, 100 feet from the other sideline and

200 feet from the rear line. Also on the property is a

guest house, set back 22.8 feet from the street. Wishing

to convert the main residence to a synagogue and Hebrew

school, and to use the guest house as a residence for the

school’s director, plaintiff applied to the Board of Ap-

peals for a special exception to use the property for those

purposes, and for variances from (a) the requirement of

a 100-foot setback from the sidelines, (b) a provision

barring an accessory building in the front yard and (c)

the provision in section 11-2.30 which prohibits a special

exception unless the structures conform to the height, area

and side yard requirements of the Zoning Ordinance. The

board denied the application on the ground that it lacked

power to grant the requested special exception and vari-

ances because the buildings did not meet the initial re-

quirement of a 100-foot setback; and it further held that

if it had the power to grant the requested relief it would

still deny the application on the merits. Plaintiff then

instituted a proceeding pursuant to Article 78 of the Civil

Practice Law and Rules to annul the board’s determina-

tion. Without answering the petition, the board moved

to dismiss the proceeding on the ground that it lacked

the power to grant the requested relief. Special Term

granted the motion to dismiss on that ground and the

Appellate Division affirmed by a divided court (Matter

of Jewish Reconstructionist Synagogue of the North Shore,

Inc. v. David M. Levitan, et al., 41 A D 2d 537). The

plaintiff then instituted this action.

‘

on ae

BLEED THROUGH

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

The provisions of the defendants’ Zoning Ordinance re-

lating to the powers of its Board of Appeals and under

attack in this action are as follows:

“Section 11-2.14

“Permit in any district churches, public and paro-

chial primary and secondary schools and clubs not

operated for a profit. Every application to the Board

of Appeals shall be accompanied by a plan showing

the location of the intended building and structures to

be erected upon the property affected. The Board of

Appeals shall require that the applicant provide an

off street parking area of such size as in the judgment

of the Board of Appeals shall be adequate for the

number of persons who may be accommodated in such

building. No such building shall be erected or be used

for such purposes within one hundred and fifty (150)

feet of any street line nor within one hundred (100)

feet of any property line.”

“Section 11-2.30

“On all applications for permits under Sections

11-2.2 and following sections, the Board of Appeals

in addition to the requirements hereinabove set forth

shall give consideration to the health, safety, morals,

convenience and general welfare of the village and of

its property owners and residents and shall act in

harmony with the general purpose and intent of this

ordinance and the applicable provisions of the Village

Law.

“The determination of the Board of Appeals on all

applications under Sections 11-2.2 and following shall

be made in accordance with the comprehensive plan

and design set forth in this ordinance and the purpose

and intent set forth in the title, sub-title and the pre-

amble thereto and in Section 177 of the Village Law.

——— ee

— SS ATE ETE NCES PAE HE PORES AUR E NS “BSB REI SP ITD PEE A oe

pages -

4a bs

Appendiz 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

The Board shall not authorize the issuance of any

permit under any of the provisions of Sections 11-2.2

and following, wnless it finds in each case that the pro-

posed use of the property or the erection, alteration

or maintenance of the proposed building or structure:

“a. Will not depreciate or tend to depreciate the

value of property in the village.

“b. Will not create a hazard to health, safety, morals

and general welfare, and will not be detrimental to the

neighborhood or the residents thereof.

“e, Will not alter the essential character of the

neighborhood.

“qd. Will not otherwise be detrimental to public

convenience and welfare.

“Before authorizing the issuance of any permit

under Sections 11-2.3, 11-2.4 and 11-2.14 said Board,

in addition to the foregoing findings, shall find that the

proposed use or the erection, alteration and mainte-

nance of the proposed building and structure will not

be feasible or practicable in a less restricted district.

Said Board shall also give consideration to the follow-

ing: Accessibility of the premises for fire and police

protection; access of light and air to the premises and

adjoining property, traffic problems, transportation

requirements and facilities, hazards from fire, the size,

type and kind of buildings and structures in the

vicinity where the public is apt to gather in numbers; j

and before authorizing the issuance of any permit for a

such proposed use or the erection of the proposed

building and structure the Board may require the ap-

plicant to submit reports from the following: The

Bureau of Fire Prevention, if any, as to fire hazards,

if any; the Chief of Police as to the traffic hazards,

ae RS se

BLEED THROUGH

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

if any; and the administrative officials as to the type

and design of the proposed buildings and structures.

“All of the buildings and structures for which per-

mits are authorized to be granted by the Board under

Sections 11-2.2 and following shall, except as otherwise

specifically provided in said sections, be in accordance

with height, area and yard requirements prescribed

tn thts ordinance and all such buildings and structures

shall conform with all applicable laws and regulations

relative to their construction, location, operation and

maintenance.” (Emphasis supplied.)

At the trial plaintiff offered evidence as to the proposed

Synagogue and related school use of the building at its

existing location and elicited from its expert planning wit-

ness the opinion that the setback of 29.7 feet from a side

line, rather than the ordained 100-foot setback, would have

no adverse effect upon adjacent properties or upon the

safety, health and general welfare of the community. In

support of this opinion, particularly as to the possibility

of noise and congestion emanating from a a synagogue

use, this expert pointed to the juxtaposition of adjacent

residences and the plaintiff’s proposed synagogue build-

ing, the topography of the area, the existence of trees and

shrubs together wth the type of construction of the main

building at the site. Upon cross-examination this witness

conceded that guod planning and zoning practice dictates

different treatment be given places of public assembly than

treatment be given places of public assembly than that

applying to single-family residences; that the more intense

the public assembly use, the less compatibility there is with

a single-family residential use, but that the incompatibility

would be determined in great measure by topography,

juxtaposition of buildings, trees and shrubbery together

with the type of the building’s construction.

— - REN ISMEERELE NSE LIE ING 2 TENCE TENT OT aoe

Se a

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

The plaintiff, through a building expert, at trial dem-

onstrated to the satisfaction of this Court that the build-

ing proposed for the synagogue use could not be physically

moved to conform with the ordained setback requirements

except at a substantial cost and that the better part of wis-

dom would dictate construction of a new building rather

than attempt to move the existing one.

The evidence offered at trial by defendants demonstrated

that the village has a population of 1,125, a total area of

630 acres with 94% zoned for one-acre residential use. The

value of the existing residential homes ranges from $80,000

to $200,000. Further, the policy of the defendants for

many years has been to maintain an expensive single-family

residential use with attendant quiet and seclusion. From

the evidence adduced both parties agree that of the present

membership of plaintiff which consists of 150 families (be-

tween 300 and 350 people) less than 4% live in defendant

village, the remaining members residing in larger and more

heavily populated neighboring communities. Finally, de-

fendants demonstrated at the trial that the subject parcel

had been part of a larger holding of six acres that was with

the approval of defendants’ Planning Board in 1954 sub-

divided into six residential plots, two of which constitute

the subject in this action.

It is a fact that the side-yard requirement of the defend-

ants’ ordinance for a residential use of the subject building

is 25 feet.

In urging unconstitutionality of the ordinance, the plain-

tiff maintains the following:

That the provision which abridges the power of the

Board of Appeals to grant a variance of the setback re-

quirement is beyond the power of a village ordinance

(Matter of Bobandal Realties, Inc. v. Carroll M. Worthing-

ton, 21 A D 2d 784; Matter of Waldorf v. Coffey, 5 Mise

2d 80);

BLEED THROUGH

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

That those provisions (Sec. 11-2.30) which require as a

prerequisite to the granting of the special exception sought

here that the Board of Appeals make the following find-

ings are contrary to law, in each instance:

(a) Will not depreciate or tend to depreciate the value

of property in the village. (Matter of Diocese of Rochester

v. Planning Board, 1 N Y 2d 508).

(b) Will not create a hazard to health, safety, morals

and general welfare, and will not be detrimental to the

neighborhood or to the residents thereof.

borhood.

(d) Will not otherwise be detrimental to public con-

venience and welfare. (Matter of Westchester Reform

Temple v. Brown, 22 N Y 2d 488.)

(e) The proposed use will not be feasible or practicable

in a less restricted district. (Matter of Community Syna-

gogue v. Bates, 1 N Y 2d 445, at page 458.)

Plaintiff of course predicates its arguments upon the

fact that it is a religious body and as such enjoys a most

favored position. In Matter of Westchester Reform

Temple v. Brown, supra, the court describes the position

of plaintiff and its strength when it says at p. 496:

‘‘Religious structures enjoy a constitutionally pro-

tected status which severely curtails the permissible

extent of governmental regulation in the name of police

powers, but the power of regulation has not been

altogether obliterated.’’

Defendants assert that the ordinance as a legislative

enactment enjoys a presumption of validity that plaintiff

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

has failed to overcome. The ordinance, it is maintained,

does not exclude churches from any district but merely

regulates them. The prerequisite findings to be made by

the Board of Appeals are characterized by defendants as

normal zoning requirements, appropriate to the use sought.

Defendants further maintain that the setback requirement

of 100 feet is a reasonable one for its legislators to man-

date in the light of its long-established low-density resi-

dential character and in view of the charge of Section 177,

Village Law, that reasonable consideration shall be given

to the character of a zoned district. Defendants distin-

guish the instant case from both Matter of Dtocese of

Rochester v. Planning Board, supra, and Matter of West-

chester Reform Temple v. Brown, supra, factually since

plaintiff here is not a community body but rather is one

whose needs would be better served at a site more centrally

located for the great majority of its membership; since

plaintiff is not presently established in the community;

since plaintiff purchased the subject parcel with knowledge

of the requirements of the ordinance then in existence for

many years; since plaintiff will not be confronted with

other than the inconvenience of selecting another site.

In essence, the defendants contend that its ordinance is

a proper exercise of power within the contemplation of

that language employed in Matter of Diocese of Rochester

v. Planning Board, supra, where it said at p. 526:

‘‘That is not to say that appropriate restrictions may

never be imposed with respect to a church and school

and accessory uses, nor is to say that under no cir-

cumstances may they ever be excluded from designated

areas.”’

Whatever may be the circumstances that would justify

the exclusion of a church use from a designated area, the

TERN REI EOS IN IE ET RESIST SNS FE RSTRNT ASEM SEO TI BONE. SOE NST IN NS SARIN ANASR ITC AES

BLEED THROUGH

be ee ae a ae n= ae ACS Oo chee eee

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

plaintiff has demonstrated to the satisfaction of this Court

that such circumstances are not present in this instance.

Appropriate here is the language employed in Brandeis

School v. Village of Lawrence, 84 N.Y.S. 2d 687, at p. 696:

“Tn view of the fact that the court held that a church

or parochial school could not be barred from a resi-

dential district because traffic hazards would be in-

creased; or because the enjoyment of neighboring

property would be lessened; or because locating a

church or school in the area would adversely affect

property values, it is hard to bring to mind what ‘cir-

cumstances’ could exist in a given situation which

would justify denying a church or school the right to

locate in a particular residential district.”

The presumption of legality applying to the legislative

enactment ‘of defendant trustees as well as the factors

urged by them as motivating the non-variable restrictions

imposed in the ordinance are outweighed by the constitu-

tional protection afforded a religious organization such as

the plaintiff (Matter of Westchester Reform Temple v.

Brown, supra, at p. 496).

The fact that the plaintiff’s members are in the main

non-residents of the Village does not justify the applica-

tion of more restrictive standards than those affecting resi-

dents. It is the character of the plaintiff as.a religious

body that controls and not the places of residence of its

members. Neither are the other facts advanced by de-

fendants as reasons supporting its enactment of such con-

sequence as to constitute a circumstance justifying denial

of plaintiff’s right to locate in the district of its choice.

Finally, the non-variable side-yard requirement of 100 feet

is not reasonable when applied here.

It is the opinion of this Court that the existing ordinance

of the defendants, as it applies to the plaintiff, is an un-

— amare m MYA wane MS RPE PII Py EI I BE OB aE, sar ses

_— Bye Nie PAE R GM AIST Chr POSE ¥ s Sag

10a

Appendia 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

constitutional enactment. Those provisions, discussed

earlier, which mandate positive findings by the Board of

Appeals before a permit may be granted have been tested

and rejected in a number of cases, particularly in Matter

of Diocese of Rochester v. Planning Board, supra; Matter

of Westchester Reform v. Brown, supra; Matter of Com-

munity Synagogue v. Bates, supra. Further, a Board of

Appeals may not be deprived by a local ordinance of the

powers granted to it by Section 179-b, Village Law (Mat-

ter of Bobandal Realties, Inc. v. Carroll M. Worthington,

supra). Here the ordinance does so deprive its Board of

Appeals since it cannot vary the height, area and yard re-

quirements and hence must be stricken as invalid. Fur-

ther, the uncontradicted testimony of plaintiff’s zoning

expert as to the physical characteristics of the site in ques-

tion demonstrates the wisdom of entrusting to an appeal

board the power and the responsibility of adjusting pre-

ordained requirements to the practical needs of an appli-

cant, particularly one enjoying the favored status of the

plaintiff.

Those considerations which are incorporated in the

ordinance and made prerequisite findings are of such a

nature as to warrant their inclusion in the deliberative

processes of that board charged with the responsibility of

granting special exception permits. Similarly, the issuing

board properly includes in its deliberations those other

features spelled out in Sec. 11-2.30 for its consideration,

i.e., access of light and air, hazards from fire, ete. While

such matters may not constitute the basis for the exclu-

sion, directly or indirectly, of a church with accessory

school use, as is attempted here, they nevertheless provide

a background against which conditions for the use may be

fashioned. This kind of ordinance would then provide that

flexibility which was approved in Matter of Westchester

Reform Temple v. Brown, swpra, in its treatment of the

SRR R EI RY ASE HED RN ST SCP NEN BN SMI EOE 2S eA REL NARA ES SEIN NM SF

BLEED THROUGH

lla

Appendix 1, Memorandum Decision of Nassau County

Supreme Court, dated July 12, 1973 (Meade, J.).

Griffin case at p. 495. If unreasonable conditions are

fashioned under such an ordinance, then relief is available

by way of review pursuant to Article 78, Civil Practice Law

and Rules.

The decision of the Board of Appeals of defendant

Village was introduced into evidence at the trial. It is

noted therein that the plaintiff had agreed in advance to

comply with all requirements of the Building Code, County

Health Department, Fire Marshal’s office and the Board

of Appeals’ requirements with respect to structural re-

quirements, fire safety, drainage, health and sanitary

regulations, noise limitations, lighting restrictions, fencing,

screening and landscaping. This willingness to comply is,

in the opinion of this Court, comprehensive enough to

permit the imposition of those conditions which can be

fashioned to minimize the impact of the use contemplated

by this plaintiff.

The Board of Appeals declared that were it to exercise

a power to vary the ordinance, it would be negative since

it found (1) the main building unreasonably close to

neighboring properties, (2) lack of adequate water supply

for fire protection, and (3) creation of a traffic hazard at

the entrance. Finally, the Board stated that in view of

its determination that it would deny the application it had

not worked out detailed requirements as to parking, light-

ing, drainage, etc., most of which, it asserted, would re-

quire study and recommendations of the Planning Board.

In view of the determinations made here affecting the

constitutionality of the ordinance and in view of the time

and effort that has been expended by the plaintiff and the

Board of Appeals, the defendants should direct that Board

to undertake at the earliest practicable date those steps

necessary to establish the detailed requirements, standards

and conditions to be applied to plaintiff’s use.

12a 7

Appendiaz 1, Memorandum Decision of Nassau County :

Supreme Court, dated July 12, 1973 (Meade, J.).

This action was tried before the Court without a jury ;

and no special findings were requested. The foregoing con- P

stitutes the decision of the Court pursuant to CPLR 4213. \

Submit judgment on notice. 4

s/ Ropert C. Merape

i 8. ¢.

BLEED THROUGH

. oe

‘ 13a

Appendix 2, Judgment of Nassau County Supreme

Court, Granted and Entered September 10, 1973,

Declaring Zoning Ordinance Invalid.

At a Special Term, Part IIT of the Supreme

Court, held in and for the County of Nas-

sau, Supreme Court Building, Supreme

Court Drive, Mineola, New York, on the 10

day of September, 1973.

Present: Hon. Roperr C. Meape, Justice.

Inpex No. 2626/72

JEWISH RECONSTRUCTIONIST SYNAGOGUE OF THE

Nortu Sxorse, Inc.,

Plaintiff,

against

THE IncorPoORATED VILLAGE OF Rostyn Harsor and Rosert

Liste, Jonn Yost, JonHn Couiins, Frank FAHNESTOCK

and Wiuui1am DeNeEereaarn, constituting the Board of

Trustees of the Incorporated Village of Roslyn Harbor,

Defendants.

’’

Plaintiff having commenced the above entitled action to

declare that § 11-2.14 and § 11-2.30 of the Zoning Ordinance

of the Incorporated Village of Roslyn Harbor unconstitu-

tional as applied to churches, schools and synagogues,

and

The issues in the above entitled action having duly come

on to be heard before Honorable Robert C. Meade, Justice

of the Supreme Court of the State of New York, County of

Nassau at Special Term Part III of this Court on the 29th

day of March, 1973 and the issues having been duly tried

on that date and the plaintiff having appeared by Schiff-

ARE Fae ete oe a

AR toe cast ae pune et w25

14a.

Appendiz 2, Judgment of Nassau County Supreme Court,

Granted and Entered September 10, 1973, Declaring

Zoning Ordinance Invalid.

macher, Cullen, Rochford & Farrell, C. Ellis Schiffmacher

and John M. Farrell, Jr., of counsel, and the defendants

herein having appeared by Pratt, Caemmerer & Cleary,

Professional Corporation, by George C. Pratt, of Counsel,

and the proofs of both parties having been adduced and

their respective counsel having been heard and the Court,

after due deliberation, having on the 12th day of July, 1973

duly made and filed a decision in writing in favor of the

plaintiff and against the defendants, and

The Court, after due deliberation, having on the 17th

day of August, 1973 duly made and filed its decision and

order granting, without opposition, defendants’ CPLR

4404(b) motion to the extent of modifying its decision,

dated July 12, 1973, to the extent of ‘‘eliminating there-

from the first two full paragraphs on page 10 thereof’’ as

‘*suggestive rather than directory in nature’’,

Now, on motion of Pratt, Caemmerer & Cleary, attorneys

for defendants, it is

ApsvupeeD, that plaintiff, Jewish Reconstructionist Syna-

gogue of the North Shore, Inc., of 2 Park Circle, Great

Neck, New York, have judgment against defendants, Incor-

porated Village of Roslyn Harbor and Robert Lisle, John

Yost, John Collins, Frank Fahnestock and William De-

Neergaard, constituting the Board of Trustees of the

Incorporated Village of Roslyn Harbor, 50 Glenwood Road,

Roslyn Harbor, New York, that sections 11-2.14 and 11-2.30

of the Zoning Ordinance of the Incorporated Village of

Roslyn Harbor be and the same hereby are declared uncon-

stitutional insofar as they prevent the Village Board of

Appeals from granting to plaintiff a permit to use and

occupy premises known and designated as Section 20,

Block A, Lots 460 and 465 on the Land and Tax Map of

the County of Nassau, for synagogue purposes.

Rosert C. Meape

Justice S. C.

BLEED THROUGH

lda

Appendix 3, Order of Appellate Division, Second De-

partment, dated September 6, 1974, Affirming

Without Opinion the Judgment of the Nassau

County Supreme Court.

At a Term of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department, held in Kings

County on September 6, 1974.

Hon. Joun P. Conaran, Jr.,

Acting Presiding Justice,

How. Marcus G. Curist

Hon. Artuur D. Brennan

How. A. Davi Bensamin

Hon. Frep J. Munper

Associate Justices

Order on Appeal

From Judgment—Civil Action

or Proceeding

The Jewish Reconstructionist Synagogue of

the North Shore, Inc.,

Respondent,

The Incorporated Village of Roslyn Harbor et al., con-

stituting the Board of Trustees of the Incorporated

Village of Roslyn Harbor,

Appellants.

In the above entitled cause the above named The Incor-

porated Village of Roslyn Harbor et al., constituting the

Board of Trustees of the Incorporated Village of Roslyn

— SGROER LTE Wh eae

l6a

Appendix 3, Order of Appellate Division, Second Depart-

ment, dated September 6, 1974, Affirming Without

Opinion the Judgment of the Nassau County Supreme

Court.

Harbor, defendants, having appealed to this court from a

judgment of the Supreme Court, Nassau County, dated

September 10, 1973; and the said appeal having been

argued by George C. Pratt, Esq., of counsel for the appel-

lants and argued by C. Ellis Schiffmacher, Esq., of counsel

for the respondent, and due deliberation having been had

thereon; and upon this court’s decision slip heretofore

filed and made a part hereof, it is:

Orxperep that the judgment appealed from is hereby

unanimously affirmed, with costs.

APPELLATE DIVISION OF THE SUPREME COURT

SECOND DEPARTMENT

Strate or New York

I, Invine N. Setxry, Clerk of the Appellate Division of

the Supreme Court, Second Judicial Department, do hereby

certify that I have compared this copy with the original

here in my office on September 6, 1974 and that this copy

is a correct description of said original.

Is Wrrxess Wuenreor I have hereunto set my hand and

affixed the seal of this Court on September 6, 1974.

Enter:

Irvine N. Seixrs,

Clerk of the Appellate Division.

BLEED THROUGH

17a

gs hatin needy = ar en ag

Second Department, dated September 6, 1974.

Supreme Court of the State of New York

Appellate Division, Second Dept.

— A D 24d —

1343 E

The Jewish Reconstructionist Synagogue of the

North Shore, Ine., respondent, v. The In-

eorporated Village of Roslyn Harbor et al.,

constituting the Board of Trustees of the

Incorporated Village of Roslyn Harbor,

appellants.

Pratt, Caemmerer & Cleary, Williston Park, N.Y. (George

C. Pratt of counsel), for appellants.

Schiffmacher, Cullen, Rochford & Farrell, Great Neck,

N.Y. (C. Ellis Schiffmacher and John M. Farrell, Jr.

of counsel), for respondent.

Judgment of the Supreme Court, Nassau County, dated

September 10, 1973, affirmed, with costs. No opinion.

Conatan, Acting P.J., Curist, Brennan, Bengzamin and

Muwoer, JJ., concur.

September 6, 1974.

Tue Jewish ReconstrructTionist SYNAGOGUE OF THE

Norra Sxore Inc. v. Ivc. Vitiace or Rostyx Harsor

1343 E

18a

Appendix 5, Prevailing Concurring and Dissenting

Opinions of New York State Court of Appeals,

dated December 4, 1975.

State of New York

Court of Appeals

Jewisn Reconsrructionist SyNaGoGuE OF THE NorTH

Snore, Inc., Respondent, v. IncorporaTED VILLAGE OF

Rostyn Hansor et al., Appellants.

Argued October 14, 1975; decided December 4, 1975

Municipal corporations—zoning—restrictions on reli-

gious institutions—Appellate Division properly affirmed

judgment of trial court which declared unconstitutional,

as applied to plaintiff synagogue, 100-foot fixed setback

ordinance and special use ordinance which denies permit

to religious institutions in residentially zoned areas if

there will be any detrimental effect on public health, safety

or welfare.

The Appellate Division properly affirmed a judgment

of the trial court which declared unconstitutional, as ap-

plied to the plaintiff synagogue, a 100-foot fixed setback

requirement and a special use ordinance of the Village

of Roslyn Harbor which denies a permit to religious in-

stitutions in residentially zoned areas if there will be any

detrimental effect on public health, safety or welfare.

Jewish Reconstructionist Synagogue of North Shore v.

Incorporated Vil. of Roslyn Harbor, 45 AD2d 988, affirmed.

AppgaL, on constitutional grounds, from an order of the

Appellate Division of the Supreme Court in the Second

Judicial Department, entered September 6, 1974, which

unanimously affirmed a judgment of the Supreme Court

at Special Term (Rosert C. Meape, J.), entered in Nassau

County, declaring sections 11-2.14 and 11-2.30 of the Zoning

BLEED THROUGH

19a

Appendix 5, Prevailing Concurring and Dissenting Opin-

tons of New York State Court of Appeals, dated

December 4, 1975.

Ordinance of the Incorporated Village of Roslyn Harbor

unconstitutional insofar as they prevented the village board

of appeals from granting to plaintiff a permit to use and

occupy certain premises for synagogue purposes.

George C. Pratt and Samuel S. Tripp for Village of

Roslyn Harbor, appellant. I. The courts below erred

in holding that a nonvariable condition for a special excep-

tion permit invalidates a zoning ordinance. (Matter of

Board of Educ., Union Free School Dist. No. 17, Town

of Oyster Bay v. Wolf, 10 AD2d 713; Matter of Simensky

v. Mangravite, 16 AD2d 977, 12 NY2d 908; Matter of

Boyd v. Walsh, 217 App Div 461; Matter of Jewish Re-

constructiomst Synagogue of North Shore v. Levitan, 34

NY2d 827; Matter of Texas Co. v. Sinclair, 279 App Div

803, 304 NY 817; Matter of Lynch v. Gardner, 15 AD2d

562.) II. Plaintiff failed to establish that the 100-foot

sideyard required legislatively by the Roslyn Harbor

Board of Trustees is unreasonable. (North Shore Uni-

tartan Soc. v. Village of Plandome, 200 Mise 524; Village

of Belle Terre v. Boraas, 416 US 1.)

John M. Farrell, Jr., and C. Ellis Schiffmacher for re-

spondent. I. A synagogue is a constitutionally protected

use which cannot be excluded from any use district in a

municipality. (Matter of Westchester Reform Temple v.

Brown, 22 NY2d 488; Matter of Diocese of Rochester v.

Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of

Community Synagogue v. Bates, 1 NY2d 445; Matter of

New York Inst. of Technology v. Le Boutilier, 33 NY2d

125; Pelham Jewish Center v. Marsh, 10 AD2d 645; Matter

of Garden City Jewish Centre v. Incorporated Vil. of Gar-

den City, 2 Mise 2d 1009; Matter of Unitarian Universalist

Church of Cent. Nassau v. Shorten, 63 Misc 2d 978;

Brandeis School v. Village of Lawrence, 18 Misc 2d 550;

20a

Appendia 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

Matter of Hofstra Coll. v. Wilmerding, 24 Mise 2d 248.)

Il. The standards contained in section 11-2.30 of the zon-

ing ordinance cannot constitutionally be imposed as a pre-

requisite to the granting of a conditional use permit for a

church or synagogue. (Westbury Hebrew Congregation v.

Downer, 59 Mise 2d 387.) III. The board has the inherent

power to grant variances as part of its application which

cannot be abridged by local ordinances. (Matter of Boban-

dal Realties v. Worthington, 21 AD2d 784, 15 NY2d 788;

Matter of Waldorf v. Coffey, 5 Mise 2d 80; Matter of Fina

Homes v. Beckel, 24 Mise 2d 823; Matter of Texas Co. v.

Sinclair, 279 App Div 803, 304 NY 817; Matter of Lynch

v. Gardner, 15 AD2d 562; Board of Educ., Union Free

School Dist. No. 17, Town of Oyster Bay v. Wolf, 10 AD2d

713; Matter of Simensky v. Mangravite, 16 AD2d 977, 12

NY2d 908; Matter of Boyd v. Walsh, 217 App Div 461, 244

NY 512; Matter of North Shore Steak House v. Board of

Appeals of Inc. Vil. of Thomaston, 30 NY2d 238.) IV. The

nonvariable 100-foot sideyard setback restriction contained

in section 11-2.14 of the zoning ordinance is unreasonable

when applied to plaintiff.

Fucusserc, J. We are here confronted with the ques-

tion of whether a village may by zoning ordinance establish

fixed setback requirements applicable to religious institu-

tional uses in an area zoned for residences. If such an

invariable requirement is not permissible, then we must

also decide whether, on the facts of this particular case,

the setback requirement is sufficiently reasonable so that it

may be applied to deny this plaintiff a variance. Finally,

we are also required to decide whether the ordinances

which set forth the bases upon which the requested special

use permit is to be granted or denied are valid, since the

village has indicated that, under these guidelines, it intends

BLEED THROUGH

21a

Appendix 5, Prevailing Concurring and Dissenting Opin-

tons of New York State Court of Appeals, dated

December 4, 1975.

to deny the special use permit even if the setback variance

is resolved in favor of the synagogue.

The plaintiff is a religious corporation with only ap-

proximately 125 family memberships (yielding approxi-

mately 300 to 350 individual members, including spouses

and children). Organized about eight years before the

institution of this litigation, it conducts religious services,

maintains a youth program, provides education classes,

and conducts various other religious and educational adult

programs. During its first years of existence, it used the

church buildings of other denominations for its services

and programs. It is conceded that its membership is spread

over a fairly wide area surrounding the Village of Roslyn

Harbor, and that only 4% of its family members actually

live in the respondent village itself.

In 1970, plaintiff purchased two adjacent lots in the

Village of Roslyn Harbor, together with the buildings

thereon. These lots had been part of a large estate which

was subdivided into some six or seven residential lots in

1954; four of these are now owned by residents who pro-

test the location of the synagogue so near to their homes.

The synagogue seeks to use the former estate house as its

meeting place for services and programs and the former

guest house as a residence for its Rabbi. The estate house

is located some 29 feet from the property line; a zoning

ordinance of the village requires that all religious uses

located in residential areas be set back at least 100 feet.

Although the village granted to its zoning board the power

to consider, on various grounds, the suitability of a re-

ligious use in the planned location, the board is not given

the authority to vary the 100-foot setback requirement.

Accordingly, when the synagogue applied for a special

use permit and for the requisite variance, the variance was

20a PL HRT SEE ORDO Re RAEN EIEN IS NTP SOURIS ORE CSG

22a

Appendix 5, Prevailing Concurrmg and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

denied and, as a consequence, the permit was also denied.

The board also indicated that, had not the denial of the

variance settled the matter, it would have denied the special

permit because of the synagogue’s potential effect on traffic

and because there was insufficient water pressure in nearby

fire hydrants.

The synagogue brought a proceeding under CPLR ar-

ticle 78 to compel the board to grant the requested vari-

ance. On appeal to this court, we held that the courts could

not compel the board to grant that which it had no power

to grant and suggested that a declaratory judgment action

would be the appropriate form in which to test the ques-

tion raised. (34 NY2d 827.) The present appeal is from

that declaratory judgment action, the courts below having

found that the ordinances in question are unconstitutional.

The judgment should be affirmed. In setting forth our

reasons, we indicate, first, the framework within which the

issues before us must be decided.

There have been three major cases involving zoning re-

strictions applied detrimentally to religious institutions in

this State. In the first of these Matter of Community

Synagogue v. Bates (1 NY2d 445), we held, inter alia, that

churches and other religious institutions are beneficial to

the public welfare by their very nature and that, therefore,

exercises of the police power directed toward determining

whether such institutions will harm the public if located in

a particular residential area must begin with that assump-

tion. In particular, we forbade localities to bar religious

uses on the ground that they had not met a burden of proof

that other suitable locations could not be found. While

the decision was made in the context of review of an ad-

ministrative determination under a particular ordinance,

LES LISTE BEE SSE NB ES Oe

BLEED THROUGH

23a

Appendiz 5, Prevailing Concurring and Dissenting Ogin-

tons of New York State Court of Appeals, dated

December 4, 1975.

its language is not limited to the confines of that ordinance

or to the procedural posture involved. The special status

of religious institutions under the First Amendment free-

dom of religion is clearly the dominant factor.

In a companion case, Matter of Diocese of Rochester v.

Planning Bd. (1 NY2d 508), we reaffirmed those proposi-

tions. We added that the sort of considerations which

may figure in a decision to grant or deny a special use

permit to other entities, such as commercial ones, may not

play the same role in decisions affecting religious uses.

Specifically, we held that this was true regardless of

whether property values will be affected adversely and

whether the local tax base might suffer from the loss of

revenue such religious uses entail. In the Rochester case,

these reasons had been advanced by the town as sufficient

to deny the special use permit; no effort to find some ac-

commodation between the needs of the residents and those

of the church had been attempted.

It has been forcefully argued to us in the case at bar

that there is growing support for the view that churches

ought to be subject to the same zoning considerations which

are permitted to govern applications from other entities.

We are aware that much of the support for the desirability

of churches in residential areas descends to us from older

case law: ‘‘The traditional concept of a small church

serving the immediately neighboring community undoubt-

edly had something to do with the idea that such use was

an integral part of community life in ‘the best and most

open localities.’ However the establishment of a modern |

church, not dependent upon local residents as its communi-

cants, and in some instances attracting people from far

distances, the inevitable use of the automobile in connection

therewith and the increased activities of the church for

ae I SEAR LEI NEE PELE ELIE! SIE ESSE SIE LIS S E IIIS TTR ELIE OTE SP ALR SOMITE ETN EYES ET OAD PT aca

24a

Appendix 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

social and community functions having only a remote con-

nection with its primary function, all present a different

picture.’’ (1 Rathkopf, Law of Zoning and Planning [3d

ed], p 19-8.)

This description no doubt portrays accurately the

problems presented by religious uses in residential areas

today. Nevertheless, it portrays but one half of the neces-

sary equation. Religion and State, separate and coexist-

ing, do make demands on one another, and the distinctions

between the little church around the corner and the

modern religious center must, no doubt, be acknowledged

and accommodated. But the peculiarly pre-eminent status

of religious institutions under the First Amendment provi-

sion for free exercise of religion remains an important

factor entering into the balance that also weighs the needs

or desires of the community.

Indeed the ground rules for such a balance were set forth

in Matter of Westchester Reform Temple v. Brown (22

NY2d 488). There, in discussing the problems involved

in honoring the constitutionally protected rights of

religious institutions while acknowledging the fact that

they do bring traffic in their wake, do impinge on the quiet

enjoyment of their immediate neighbors, and do affect the

tax base of a town, we held (pp 496-497): ‘‘We have not

said that considerations of the surrounding area and

potential traffic hazards are unrelated to the public health,

safety or welfare when religious structures are involved.

We have simply said that they are outweighed by the con-

stitutional prohibition against the abridgment of the free

exercise of religion and by the public benefit and welfare

which is itself an attribute of religious worship in a com-

munity. If the community can, consistent with this policy,

both comply with the constitutional requirement and, at

BLEED THROUGH

—_

25a

Appendix 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

the same time, avoid or minimize, insofar as practicable,

traffic hazards or other potential detriments bearing a sub-

stantial relation to the health, safety and welfare of the

community, there is no barrier to its doing so. Neverthe-

less, we have already decided in the Rochester case that,

where an irreconcilable conflict exists between the right to

erect a religious structure and the potential hazards of

traffic or diminution in value, the latter must yield to the

former.”’

Thus the question before us now is whether the

ordinances of the Village of Roslyn Harbor contain guide-

lines which promote such a permissible kind of compromise

or whether, either on their faces or as applied, they restrict

religious uses without recognizing their special, protected

status under the First Amendment. So phrased, the ques-

tion is clearly the same one which must always be asked

when the exercise of the police power conflicts with the

exercise of a First Amendment right. (See People v. Taub,

37 NY2d 530; Cantwell v. Connecticut, 310 US 296; Sherbert

v. Verner, 374 US 398; Wilconsin v. Yoder, 406 US 205.)

Unlike the ordinances which we upheld in the West-

chester case,’ which required the authorities to consider the

effects of a religious use upon residents and to set building

size and lot restrictions to avoid or minimize “insofar as

practicable” any detrimental effects (22 NY2d, 495), the

special use ordinance before us directs authorities to deny

1It has been argued here that the Westchester case ought not

to apply to these facts because, in that case, the church already

occupied property at the chosen location and its expansion was

the subject of the dispute. But we said explicitly, in Westchester,

that the considerations which apply to initial location and those

which apply to planned expansions are identical. (22 NY2d 488,

493.)

26a

Appendix 5, Prevailing Concurring and Dissenting Opin-

tons of New York State Court of Appeals, dated

December 4, 1975.

the use permit if they find that the religious use will have

any detrimental effect on public safety, health, or welfare,

including effects on traffic, on fire safety, and on the

character of the surrounding neighborhood. It contains no

substantial requirement that efforts to accommodate or

mitigate these effects be made. (See Anderson, New York

Zoning Law and Practice [2d ed], $§ 9.29-9.34.)

The variance ordinance falls to the same analysis. While

residents may apply for variances from setback require-

ments and the board may grant them, religious uses are

| subjected to an invariable requirement of 100 feet. We

need not address the potential violation of equal protection

which may be involved in such a differentiation; indeed

there may be none, for it can be argued that churches and

synagogues do present sufficiently different problems so

that they may be treated separately from residences with-

out offending that clause of the Constitution. (See 2

Anderson, American Law of Zoning, $§ 9.19-9.25.) Rather,

the invariability of the ordinance offends against the re-

quirement that efforts to accommodate religious uses be

made. There could well be situations in which no detriment

to any aspect of public safety or welfare would result from

a setback of less than 100 feet.’

Nor is invariability the only evil in the ordinance. Its

application to the synagogue in this case is not supported

2 There is also involved here a request for a variance of the

setback requirements to accommodate the location of the guest

house which will be used to house the congregation’s Rabbi. While

it presently meets residential requirements, under the village’s

zoning ordinances, it becomes an accessory use to the main building

and is thus required to have a larger setback. Our rulings with

respect to the primary setback dispute apply with equal force

to the guest house setback.

apenas oo

BLEED THROUGH

27a

Appendix 5, Prevailing Concurring and Dissenting Opin-

tons of New York State Court of Appeals, dated

December 4, 1975.

by sufficient evidence to justify it. While there is, in the

record, only some indication that there may be traffic or

noise-related inconvenience to the synagogue’s immediate

neighbors, or problems with ‘fire protection, there is no

hard evidence to that effect, nor that any effort was made

to find ways to mitigate these inconveniences short of out-

right denial of the variance. While this no doubt stems

from its intransigent nature, which denied the board power

to modify it for any reason, that does not mean we must

simply remit this case for further findings as to what set-

back, if any, is a reasonable one. As already indicated, the

existing building which the synagogue wishes to use already

sits, as it has for a long time, some 29 feet from the prop-

erty line. Given this record, the question which the village

must answer is not whether 29 feet is reasonable, but

rather, what reasonable measures can be taken to mitigate

the effect upon the neighbors of having a synagogue 29 feet

from the property line.*

The record makes clear that the village’s objections to

the location chosen by the synagogue are founded on no

more than perceived inconveniences. The village’s own or-

dinances reflect a policy which labels acceptable a distance

of 125 feet between a religious building and the nearest

residence, since these ordinances permit a residence to be

located 25 feet from its property line and would permit a

church to be located 100 feet from its property line. The

5 We note that the original decision of the zoning board states

that body’s recognition of the synagogue’s offer to meet any reason-

able requirement for modification or adaptation in order to bring

the structures within existing requirements. The synagogue also

consented to continuing jurisdiction of the board for as long as

necessary in order to assure the board that all such requirements

had been met.

— — — . ———— _— — EES Or ig CBT AE IR Fh gt Slee SE on eae BE, LIEN OS og PIN

ities: EEE TIS IEE LRG LEE MOE NEE LOTS SLICE OIE ATA Swe a he i

28a

Appendiz 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

record discloses, that, in fact, the nearest house is 106 feet

away from the synagogue building. Requiring the syna-

gogue to observe the 100-foot setback in these circumstan-

ces would place it some 177 feet away from the nearest

house or, put another way, the village’s determination to

exclude the synagogue is based on a mere 19-foot discrep-

ancy between reality and the village’s own statutory ideal.

Since the cost to the synagogue of moving the building or

constructing new facilities in its place is greater than it

ean afford, such a requirement would be tantamount to a

denial of the use permit.

There remains the assertion made by the village that,

since so few of its members live in the Village of Roslyn

Harbor, the synagogue should be subject to a requirement

that it demonstrate that there is no more suitable place for

it elsewhere. We disposed of that contention in Matter

of Community Synagogue v. Bates, 1 N.Y.2d 445, 154

N.Y.S.2d 15, 136 N.E.2d 488, (supra). As a variation on

this theme, however, the village argues that if it, rather

than the synagogue, can show the inappropriateness of

location, then it may exclude a religious use, citing to

our decision in Matter of Diocese of Rochester v. Planning

Bd., 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827, supra.

We did indicate, in that case, that it might be possible for

a town to exclude religious uses where all other exceptions

to the residential character of the area are also excluded.‘

But we did not say this could be done for no better reason

than that a number of the members of the church do not

live in the town. As Mr. Justice Meade correctly noted in

see North Shore Unitarian Soc. v. Village of Plandome,

, 109 N.Y. va 2d rod Pelham Jewish Center vy. Marsh,

BLEED THROUGH

29a

Appendix 5, Prevailing Concurring and Dissenting Opin-

tons of New York State Court of Appeals, dated

December 4, 1975.

his decision below, the status of religious uses as protected

under the First Amendment is the source of their desira-

bility in the community ; such First Amendment rights have

never, to our knowledge, been limited to being exercised

within the boundaries of one’s own place of residence.

Moreover, as we noted in Community Synagogue, the power

to decide where churches may not locate becomes the power

to say where they may do so. That is impermissible.

In sum, to the extent that the ordinances of the Village

of Roslyn Harbor authorize the denial of a special use per-

mit for location of religious institutions in a residential

district without setting reasonable requirements for adap-

tations which would mitigate their effects, the ordinances

are unconstitutional. Accordingly, the order below must be

affirmed in all respects.

Brerre, Chief Judge (concurring).

I concur in result to affirm. I agree with so much of the

dissent as characterizes the majority expression of the law

as too absolutist in providing a preference and even to some

extent an immunity from significant zoning regulation for

premises devoted to religious uses. On the other hand, I

cannot agree with the dissent that significant factors in the

treatment of religious premises should be the service of

members of its congregation in the community, that its

presence may lessen property value, or that a religious

group may be required to choose among alternatives less

offensive to the chosen milieu.

Fundamentally, the law should move in the direction ot”

requiring even religious institutions to accommodate to fac-

tors directly relevant to public health, safety, or welfare,

inclusive of fire and similar emergency risks, and traffic

30a

Appendia 5, Prevailing Concurring and Dissenting Opwn-

ions of New York State Court of Appeals, dated

December 4, 1975.

conditions insofar as they involve public safety (cf. Matter

of Diocese of Rochester v. Planning Bd., 1 NY2d 508, 526;

see, generally, 1 Rathkopf, Law of Zoning and Planning

[3d ed], p 19-17). Indeed, even in Matter of Westchester

Reform Temple v. Brown (22 NY2d 488, 496), while stat-

ing that these considerations could not outweigh the con-

stitutionally-based ruling favoring religious institutions,

the court recognized that “considerations which may wholly

justify the exclusion of commercial structures from resi-

dential areas * * * [may] * * * be considered for the pur-

pose of minimizing, insofar as practicable, the impairment

of surrounding areas or the danger of traffic hazards’. It

is the all but conclusive presumption that considerations of

public health, safety and welfare are always outweighed,

as some of the precedents suggest, by the policy favoring

religious structures that I find objectionable. Hence, my

rejection of the absolutist view expres: 2d in the majority

opinion, although to be sure there is the broad language in

the precedents which might support that view.

I vote to affirm, since on this record, and considering the

several grounds for preventing the village board of appeals

from granting plaintiff a special permit, it is likely that the

effect, if not the purpose, of the ordinance is exclusionary,

without compensating values to sustain a public purpose

related to public safety and public welfare. The overall

impact of the restrictions in the ordinance as it now reads

does not accommodate sufficiently to the priorities, albeit

limited, that should be accorded to religious institutions.

Jones J. (dissenting). We think the time has come and

that this is an appropriate case in which to breathe vitality

into the so far lifeless words of Judge Frorssex that, not-

withstanding that churches, with schools, enjoy a favored

BLEED THROUGH

3la

Appendiz 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

status in the law of zoning, nonetheless, they can be held

subject to “appropriate restrictions” (Matter of Diocese of

Rochester v. Planning Bd., 1 NY2d 508, 526). In our view

New York should approach the position taken by the

growing number of States holding what has been termed

the ‘‘minority view’’ (1 Rathkopf, Law of Zoning and

Planning [3d ed], pp 19-4—19-5; Corporation of Presiding

Bishop of Church of Latter-Day Saints v. City of Porter-

ville, 90 Cal App 2d 656, app dsmd 338 US 805, rehearing

den 338 US 939; Minney v. City of Azusa, 164 Cal App

12; West Hartford Methodist Church v. Zoning Bd. of

Appeals, 143 Conn 263; Milwaukie Co. of Jehovah’s Wiu-

nesses v. Mullen, 214 Ore 281; St. James Temple of A. O. H.

Church of God v. Board of Appeals, 100 Ill App 2d 302,

eert den 395 US 946; Miami Beach United Lutheran Church

v. City of Miami Beach, 82 So 2d 880 [Fla}).

The issue here is not the validity of a zoning ordinance

which totally excludes churches and synagogues from a

residential district, or even the validity of the present regu-

latory ordinance in all circumstances. Rather the question

is the validity of the 100-foot sideline setback restriction

of this ordinance as applied specifically to respondent

Synagogue.

There is obvious merit to the proposition that churches,

synagogues and other institutions dedicated to religious

objectives in consequence of their high purpose and moral

worth make a unique contribution to the public welfare.

But that is not all of it. They also bring congestion; they

generate traffic and create parking problems; they can

cause a deterioration of property values in a residential

zone; in consequence of customary exemption from taxa-

tion they work an economic disadvantage to taxable prop-

32a

Appendix 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

erties (perhaps recognized as increasingly less accepiable

today when the percentage of actual use of large and im-

pressive institutional facilities is often very low indeed).

Turning to the case before us, we recognize that churches

and synagogues occupy a special position along our scale

of societal values and we do not suggest that their status

should be leveled to that of all other users of property.

We cannot agree, however, that the result in which the

majority here acquiesces commends itself either to sound

legal doctrine or to common sense.

First, as to the more strictly legal aspects of the matter

we find encouragement in the writings if not the actual

decisions of several reported cases (Matter of New York

Inst. of Technology v. Le Boutillier, 33 NY2d 125, 131;

Matter of Westchester Reform Temple v. Brown, 22 NY2d

488, 494; Ginsberg v. Yeshiva of Far Rockaway, 45 AD2d

334, 337-388, affd 36 NY2d 706; Matter of Westchester

Reform Temple v. Griffin, 52 Mise 2d 726, affd 29 AD2d

672, 728-729, affd 22 NY2d 488, 496; St. James Temple of

A.O.H. Church of God v. Board of Appeals, 100 Ill App

2d 302, cert den 395 US 946; Board of Zoning Appeals v.

Decatur, Indiana Co. of Jehovah’s Witnesses, 233 Ind 83;

and see Churches and Zoning, 70 Harv L Rev 1428). We

do not perceive that the constitutional guaranties of

freedom of worship are always absolute and invariable.

It even appears that in the past judicial attention has

been preoccupied with the status and characteristics of

the religious users rather than addressed to the functional

aspects of the religious uses. Thus, today the facilities of

religious institutions are properly and fittingly made avail-

able for use by other religious and community organiza-

tions and groups. Indeed this congregation until now has

BLEED THROUGH

—

33a

Appendix 5, Prevailing Concurring and Dissenting Opin-

tons of New York State Court of Appeals, dated

December 4, 1975.

itself been the beneficary of that practice. To this extent,

the uses to which the buildings of religious institutions are

put, from the standpoint of the protection of the public

welfare, are no different from those of other places of

community assembly and activity. As the Supreme Court

of Florida has observed: “It is commonly known that

generally the activities of the present-day churches are

wide and varied as, indeed, they should be. The use of

church buildings and facilities is not confined to worship

periods on Sunday and mid-weekly prayer meetings. They

are often used as places of instruction and entertainment.

We do not frown upon these activities; on the contrary

we think they should be promoted and encouraged. But

we do not agree that because of the merits of these activi-

ties it can be said that an infringement of the constitutional

rights of the owner results if it is not allowed use of the

property for such purposes in the midst of a section of

the city which has been restricted, and which the appellee

in this instance knew had been restricted, primarily to

homes to be occupied by individual families.” (Miami

Beach United Lutheran Church v. City of Miami Beach,

82 So 2d 880, 882 [Fla], supra.) It cannot be successfully

contended, other than in an absolutist perspective, that the

application of sensitively, minimally designed regulation

of religious and educational uses would materially ad-

versely affect the full and free exercise of religious or

educational freedom.

We turn then to the factual aspects of the application of

the particular regulation to which it is sought to subject

this respondent. At the outset we note that this synagogue

is not a long-term or even a short-term member of the

Roslyn Harbor community. It is a newcomer which pur-

chased the property in question with full awareness of

—_ —— ss “ -S-> art

ee ea ea as OSL eet SRI ALI RY

34a

Appendix 5, Prevailing Concurring and Dissenting Optn-

tons of New York State Court of Appeals, dated

December 4, 1975.

the regulatory provisions of the local zoning ordinance

which had predated the synagogue’s interest in the prop-

erty by 20 years. Beyond that this synagogue comes not

to serve the religious or other needs of residents of Roslyn

Harbor but of members of its own congregation from

nearby municipalities. Thus only 4 of the 125 member

families live in the Village of Roslyn Harbor; 55 families

live outside the village limits in the densely populated

Roslyn area south of Northern Boulevard; 27 families

live miles away in the Great Neck area; and 26 families

live in seattered other places on the North Shore. There

is no evidence in the record before us that respondent

synagogue could not have found an appropriate available

location elsewhere in the Village of Roslyn Harbor or in

one of the adjoining municipalities. It does not appear

that an appropriate synagogue facility could not be con-

structed on the 2.4-acre parcel with full observance of the

prescribed 100-foot sideline setbacks. It is true that re-

spondent synagogue could not use the buildings presently

located on the property and that new construction would

be expensive—but all this was well known to it when the

recently organized synagogue purchased the premises.

Given the reasonable expectation that use of the premises

on Glenwood Road for synagogue purposes will surely in-

crease vehicular traffic in the area and create parking prob-

lems, not only endangering the comfort and convenience of

residents of the community but also creating hazards to

public health and safety, we cannot conclude that there are

constitutional or other legal considerations which preclude

the application of what to us are the reasonable provisions

of this zoning ordinance to this property owner in the

circumstances presented in this record. Rather we would

conclude that there is a reasonable relationship between

BLEED THROUGH

35a

Appendix 5, Prevailing Concurring and Dissenting Opin-

ions of New York State Court of Appeals, dated

December 4, 1975.

the zoning regulation as sought to be applied here and the

public health, safety and general welfare of the Village of

Roslyn Harbor, and that the application of such regulation

would not infringe the legitimate interests of respondent

synagogue. The time has come when our court should

forthrightly face the legal, economic and social implica-

tions of continued slavish adherence to the outmoded

doctrine that churches and synagogues are wholly immune

from even reasonable zoning regulation.

We would reverse the order of the Appellate Division

and remit the case to Supreme Court, Nassau County, for

entry of judgment declaring sections 11-2.14 and 11-2.30

constitutional as applied to respondent synagogue.

Judges GaBriELLI and Cooke concur with Judge Fvcus-

BERG; Chief Judge Breirex concurs in result in a separate

opinion in which Judge WacutTier concurs; Judge Jones

dissents and votes to reverse in another separate opinion

in which Judge JaseNn concurs.

Order affirmed, with costs.

1 RY WEARER RE EEE NEA LR AS POMEL BO ELE IN EIS LOE PS ISN IER TN RAN EE PRE Pad

36a

Appendix 6, Order of New York State Court of Ap-

peals, dated December 4, 1975, Affirming Order

of Appellate Division, Second Department.

State of New York

Court of Appeals

’™

The Jewish Reconstructionist Synagogue

of the North Shore, Inc.

Respondent,

vs.

The Incorporated Village of Roslyn Harbor, et al.,

Appellants.

. 4

BE 1t REMEMBERED, That on the 22nd day of January in

the year of our Lord one thousand nine hundred and

seventy-five, the Incorporated Village of Roslyn Harbor,

et al., the appellants in this cause, came here unto the

Court of Appeals, by Pratt, Caemmerer & Cleary, their

attorneys, and filed in the said Court a Notice of Appeal

and return thereto from the order of the Appellate Divi-

sion of the Supreme Court in and for the Second Judicial

Department. And the Jewish Reconstruction Synagogue

of the North Shore, Inc., the respondent in said cause,

afterwards appeared in said Court of Appeals by Schiff-

macher, Rochford & Cullen, its attorneys.

Which said Notice of Appeal and the return thereto, filed

as aforesaid, are hereunto annexed.

Wuerevpon, The said Court of Appeals having heard

this cause argued by Mr. George C. Pratt of counsel for

the appellants, and by Mr. John M. Farrell, Jr. of counsel

for the respondent, and after due deliberation had

thereon, did order and adjudge that the order of the

Appellate Division of the Supreme Court appealed from

herein be and the same hereby is affirmed, with costs.

BLEED THROUGH

37a

Appendiz 6, Order of New York State Court of Appeals,

dated December 4, 1975, Affirming Order of Appellate

Division, Second Department.

Opinion by Fuchsberg, J. All concur, Breitel, Ch. J., in

result in a separate opinion in which Wachtler, J., con-

curs; except Jones, J., who dissents and votes to reverse

in an opinion in which Jasen, J., concurs.

And it was also further ordered, that the records afore-

said, and the proceedings in this Court, be remitted to the

Supreme Court of the State of New York, there to be

proceeded upon according to law.

THEREFORE, it is considered that the said order is af-

firmed &. as AFORESAID.

And hereupon, as well the Notice of Appeal and return

thereto aforesaid as the judgment of the Court of Appeals

aforesaid, by it given in the premises, are by the said

Court of Appeals remitted into the Supreme Court of the

State of New York before the Justices thereof, according

to the form of the statute gn such case made and provided,

to be enforced according (law, and which record now re-

mains in the said Supreme Court, before the Justices

thereof, &.

Donato M. SHERAw

Deputy Clerk of the Court of Appeals

of the State of New York.

Court or AppEats, CLERK’s OFFICE, /

Albany, December 4, 1975 j

I Heresy Certiry, that the preceding record

contains a correct transcript of the pro-

ceedings in said cause in the Court of Ap-

peals, with the papers originally filed there-

in, attached thereto.

(Sra)

Donatp M. SHERAW

Clerk.

Ry eT UNE HBC ON A ORES HINT A Be RY 8TH RHE TNT, LIE ANN OT RY BO he a a cata dea ks ANAL, eat

38a

Appendix 7, Order of New York State Court of Ap-

peals, dated March 30, 1976, Denying Village’s

Motion for Reargument or in the Alternative

Amendment of the Remittitur.

STATE OF NEW YORK,

Court oF APPEALS

At a session of the Court, held at Court of

Appeals Hall in the City of Albany on the

thirtieth day of March A. D. 1976.

Present, Hon. Cartes D. Brerrer, Chief Judge, presiding.

’*

2 Mo. No. 281

THe JEwisH RECONSTRCTIONIST SYNAGOGUE

oF THE NortH SnHorg, Inc.,

Respondent,

vs.

THE INCORPORATED VILLAGE OF Rostyn Harsor, et al.,

Appellants.

A motion for reargument or, in the alternative, to amend

the remittitur in the above cause having heretofore been

made upon the part of the appellants herein and papers

having been submitted thereon and due deliberation hav-

ing been thereupon had, it is

OrpERrED, that the said motion be and the same hereby is

denied.

(Sax) JosEPH W. BELLACOSA

Joseph W. Bellacosa

Clerk of the Court

BLEED THROUGH

SO a TT ES TS TREE AT UN aa ME GEINTROM HK IBM CN INET Tes AORTA WMT ee = 1

39a

Appendix 8, Sections 11-2.2, 11-21.14, and 11-2.30 of

the Building Zone Ordinance of the Incorporated

Village of Roslyn Harbor, Nassau County, New

York.

Section 11-2.2. The Board of Appeals, in addition to the

powers and duties specified in the Village Law, shall have

the power to the extent hereinafter set forth, after public

notice and hearing, and subject to appropriate conditions

and safeguards, to determine and vary the application of

the regulations herein established in harmony with the

purposes enumerated in the Village Law and the general

purpose and intent of these regulations, as hereinafter

provided:

Section 11-2.14. Permit in any district churches, public

and parochial primary and secondary schools and clubs

not operated for a profit. Every application to the Board

of Appeals shall be accompanied by a plan showing the

location of the intended building and structures to~-be

erected upon the property affected. The Board of Appeals

shall require that the applicant provide an off street park-

ing area of such size as in the judgment of the Board of

Appeals shall be adequate for the number of persons who

may be accommodated in such building. No such building

shall be erected or be used for such purposes within one

hundred and fifty (150) feet of any street line nor within

one hundred (100) feet of any property line.

Section 11-2.30. On all applications for permits under

Sections 11-2.2 and following sections, the Board of Ap-

peals in addition to the requirements hereinabove set forth

shall give consideration to the health, safety, morals, con-

venience and general welfare of the village and of its

property owners and residents and shall act in harmony

with the general purpose and intent of this ordinance and

the applicable provisions of the Village Law.

40a

Appendix 8, Sections 11-2.2, 11-21.14, and 11-2.30 of the

Building Zone Ordinance of the Incorporated Village

of Roslyn Harbor, Nassau County, New York.

The determination of the Board of Appeals on all appli-

cations under Sections 11-2.2 and following shall be made

in accordance with the comprehensive plan and design set

forth in this ordinance and the purpose and intent set

forth in the title, subtitle and the preamble thereto and in

Section 177 of the Village Law. The Board shall not au-

thorize the issuance of any permit under any of the provi-

sions of Section 11-2.2 and following, unless it finds in

each case that the proposed use of the property or the

erection, alteration or maintenance of the proposed build-

ing or structure:

(a) Will not depreciate or tend to depreciate the value

of property in the Village.

(b) Will not create a hazard to health, safety, morals

and general welfare, and will not be detrimental to the

neighborhood or to the residents thereof.

hood.

(d) Will not otherwise be detrimental to public con-

venience and welfare.

Before authorizing the issuance of any permit under

Sections 11-2.3, 11-2.4 and 11-2.14 said Board, in addition

to the foregoing findings, shall find that the proposed use

or the erection, alteration and maintenance of the pro-

posed building and structure will not be feasible or practi-

cable in a less restricted district. Said Board shall also

give consideration to the following: Accessibility of the

premises for fire and police protection; access of light and

air to the premises and adjoining property, traffic prob-

lems transportation and requirements and facilities, haz-

POLIS : LOPES OO LIT SLD Me, FORE GD, Mi Nee WEE MENDES LE TLE LLL PE IM LOE a Oe >

BLEED THROUGH

4la

Appendix 8, Sections 11-2.2, 11-21.14, and 11-2.30 of the

Building Zone Ordinance of the Incorporated Village

of Roslyn Harbor, Nassau County, New York.

ards from fire the size, type and kind of buildings and

structures in the vicinity where the public is apt to gather

in numbers; and before authorizing the issuance of any

permit for such proposed use or the erection of the pro-

posed building and structure, the Board may require the

applicant to submit reports from the following: The

Bureau of Fire Prevention, if any, as to fire hazards, if

any; the Chief of Police, as to traffic hazards, if any, and

the administrative officials as to the type and design of the

proposed buildings and structures.

All of the buildings and structures for which permits are

authorized to be granted by the Board under § 11-2.2 and

following shall, except as otherwise specifically provided

in said sections, be in accordance with height, area and

yard requirements prescribed in this ordinance and all

such buildings and structures shall conform with all appli-

cable laws and regulations relative to their construction,

location operation and maintenance.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.