Group's Bias Bid Against Ramapo Is Rejected

, New York Law Journal

   An Orthodox Jewish group has lost its suit alleging that four villages in the Town of Ramapo and their officials used zoning concerns as a pretext for discrimination in blocking a large multi-family development.

Southern District Judge Kenneth Karas said plaintiffs suing on behalf of Mosdos Chofetz Chaim, a religious corporation, failed to make a case they were denied equal protection when the villages sued to block its application to build Kiryas Radin, a 60-unit multi-family adult student housing project on a 4.7-acre site in Ramapo.

Karas said he was sympathetic to plaintiffs' claims, for "who would know better than the parties in this case whether the dispute is a product of the decades-long tension between the Hasidic community and the villages of Ramapo?"

Nonetheless, Karas said the evidence fell far short of showing different treatment or discriminatory animus by the villages and village officials in two cases: Bernstein v. The Village of Wesley Hills, 08-cv-156 and The Village of Chestnut Ridge v. Mosdos Chofetz Chaim, 12-cv-8856.

Gregory Saracino, a partner at Milber Makris Plousadis & Seiden in White Plains who is counsel for the Village of Pomona, said Monday that the evidence plaintiffs offered in their $100 million suit against the villages was weak.

"Plaintiffs were using this case as a platform to air out decades-old claims of discrimination," Saracino said. "This case, with a $100 million price tag on it, was designed to bankrupt the villages and is rooted in vindictiveness. Judge Karas gave them every benefit of the doubt—we've been through two years of discovery and plaintiffs' case fell woefully short."

In 2004, the Town of Ramapo approved a zoning plan for adult student housing and also approved Kiryas Radin. Prior to the zoning change, only eight units could have been built on the site.

The villages of Wesley Hills, Pomona, Chestnut Ridge and Montebello filed suit (The Chestnut Ridge action) against Ramapo claiming the Kiryas Radin plan did not comply with the New York State Environmental Quality Review Act (SEQRA). The suit was sent back to state court and ultimately removed to federal court in 2012.

Supporters of Mosdos Chofetz Chaim, led by Rabbi Aryeh Zaks, fired back with counterclaims and a suit of their own in 2008, alleging that the defendant officials colluded and hid "behind a false facade as protectors of the environment" to use their authority "to advance their campaign against the spread of Orthodox Jewry in the Town of Ramapo."

The plaintiffs made several civil rights claims for violations of, and conspiracy to violate, the organization's rights under the First and Fourteenth Amendments. At the heart of their case was that the defendant villages and their officials failed to bring similar legal challenges—ones based on concerns about water, traffic, sewer and community character—to similar projects (or comparators) that were not built by members of the Hasidic community, a violation of the Equal Protection Clause.

But in his decision released Friday, Karas said the plaintiffs "offered nothing more than conclusory or unsubstantiated assertions" in support of their equal protection claim.

"Plaintiffs have failed to provide (or, as far as the court is aware, even seek) expert testimony, a deposition of defendants' expert," people with personal knowledge of the sites in question or information detailing the impacts of each site, he said.

Karas said he was persuaded by the defendants' expert that each of the comparator sites "is located adjacent to or near higher density or commercial/industrial zoning, or on or near roads that carry more traffic, and not in an area that is as dominated by single family homes as the area around Kiryas Radin."

In fact, the judge said, plaintiffs offered no evidence that the defendants were even aware of the comparator sites before they were built.

Discriminatory Intent

While Karas said he didn't need to reach the issue of discriminatory intent, he addressed it anyway.

The starting point was the claim of the plaintiffs that the villages were formed in the 1960s to resist the "influx of people the [villages] deemed undesirable"—Orthodox and Hasidic Jews. They also said the villages had not banded together in any other litigation and only did so for the Kiryas Radin plan.

But Karas agreed with the defense statement that the 2004 action, while unique, did not evince a discriminatory purpose.

The only individual defendant who was identified as having made discriminatory comments was Robert Rhodes, former trustee in Wesley Hills, one of the founders of the group "Preserve Ramapo" who allegedly "advocated fertility testing and complained about the birth rate of the Orthodox Hasidic community within … Ramapo."

Karas said he was "disturbed by Rhodes' discussion of the combination of poverty and high birth rates of the Hasidic community in his blog post, even though he relates these comments to a failure to account for increased Medicaid costs."

However, the judge noted the bulk of the blog posts indicate concerns over sewer, water and zoning problems, and the "struggle of rights in conflict between his organization and Ramapo."

In any event, isolated racial remarks by one defendant do not make out a prima facia case of discrimination and "Likewise, the mere 'feeling' that there was an anti-Semitic motivation to the Chestnut Ridge Action is insufficient to survive a motion for summary judgment."

He recognized the "sincerity" of the plaintiffs' belief they were denied equal protection.

"The allegations, while often supported by inference, are grounded in the context of 50-plus years of distrust, hostility, and even bigotry within the communities here," he said. "Having lived and worked with residents and officials from the villages during these many years, plaintiffs firmly believe that they have been targeted for their religious beliefs, even if they cannot point to discriminatory statements by defendants."

Joseph Haspel of Goshen is counsel for the plaintiffs. Haspel and Philip Murphy are counsel for the counterclaim plaintiff.

Haspel said Monday the plaintiffs would appeal.

Jody Tamar Cross, senior counsel, and Michael Zarin, partner at Zarin & Steinmetz, represent defendants in the Bernstein case and the counterclaim defendants in The Village of Chestnut Ridge case. Cross said the decision was a long time coming.

"After a decade of litigation, the court vindicated the efforts of the villages, whose steadfast advocacy for legitimate planning and environmental concerns on behalf of their constituents was in no way discriminatory," Cross said.

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