The New York Times

Sunday, June 26, 2005

In the Character of a Village, It's Property vs. Religion


Airmont, N.Y.

LET us return to Hillside Avenue in this tiny town, where Orthodox Jews want to build a yeshiva, adult housing and a dormitory complex in the middle of a quiet residential neighborhood in Rockland County.

After the village was sued by the federal government a few weeks back, residents there made it clear that they felt there was a lot more to say about the issue than was included in this column about it. They're right.

In truth, there are many issues buzzing like shrapnel around the dispute between current residents and Congregation Mischknois Lavier Yakov. Some are hard to divorce from allegations, present since Airmont was founded in 1991, that the village is hostile to the growth of Orthodox communities.

But the biggest issue is one that this village shares with hundreds around the country in a series of legal battles pitting property rights against religious rights. Don't think it can't pop up and bite you.

At issue is a law, the Religious Land Use and Institutionalized Persons Act of 2000 (known as Rluipa and pronounced ar-LOO-pah), enacted, Congress said, "to protect religious liberty, and for other purposes."

But in dozens of lawsuits and hundreds of land-use disputes, communities are claiming the "other purposes" have obliterated the bill's stated intent. The law is based on the premise that religious properties are entitled to protections not given to others. In effect, it means that a project that might not be permissible for, say, a government agency or a private homeowner might be just fine for a church, synagogue or mosque, and that zoning that keeps out a mega-Wal-Mart might not keep out a megachurch.

Which brings us back to Hillside Avenue, a narrow, crooked street of eclectic homes, some dating to the 1700's, towering oaks, wild turkeys and semirural repose.

Back in 1980, another religious group, the Church of the Nazarene, bought 19 acres with the intent of building a 950-seat church. After concerns were raised about traffic, road widening and other issues, the proposal was turned down in 1983.

Now comes the Orthodox congregation with a proposal for the same land.

It calls for a dormitory housing 170 single students and 30 town houses that the village says could house 300 people. That's perhaps 470 people living on land zoned for 15 single-family homes. This in a rural area that exists on well water, where sewers sometimes become overloaded and spill into nearby rivers.

The big difference between this proposal and the church's is not the religion of the applicants. It's Rluipa. After an application was turned down in 2002, the Orthodox congregation turned around and filed suit, citing Rluipa, and the village reluctantly agreed to a settlement that allows the planning process to go forward. A welter of lawsuits have followed, including a federal suit accusing the village of discriminating on the basis of religion because its zoning code prevents religious boarding schools from operating.

DENNIS LYNCH, a lawyer for the congregation, says that zoning should protect health and safety but that the right of a religious organization to practice its faith should trump the desire of residents to maintain the character of a residential area. "If it's an issue of aesthetics, the Constitution doesn't protect aesthetics," he said.

Local residents say, in fact, that health and safety are issues. But local officials and legal experts around the country say Rluipa has created something new in American life: federal intrusion into the most local of all issues, community zoning and land-use decisions.

So, for now, the law goes to society's real priests, the lawyers. Some say the law, like an even more far-reaching predecessor, will be overturned. Kevin J. Plunkett, who was hired to represent Airmont and has handled Rluipa cases in Mamaroneck and Mount Pleasant, argues that as case law develops it will become clear that Rluipa was not intended to trump local zoning and can't do it.

But for now, local communities are running scared, particularly because the law makes them pay both sides' legal fees if they lose Rluipa cases.

Airmont's mayor, John C. Layne, heavily criticized for approving the settlement allowing the planning process to go forward, says he thinks the proposal is inappropriate but did not want to risk an Rluipa suit.

"I'm religious," he said. "I'm a practicing Roman Catholic. My children go to religious school. My wife teaches at a religious school. But I don't think it's the place of religion to change the character of a single-family neighborhood, and I don't think it's the place of the federal government to take local land-use decisions from local governments."