Holy Spirit Ass'n for Unification of World Christianity v. Rosenfeld

• Decision Date: 17 January 1983
• Parties: In the Matter of The HOLY SPIRIT ASSOCIATION FOR the UNIFICATION OF WORLD CHRISTIANITY, Appellant, v. Gabriel ROSENFELD, et al., constituting the Zoning Board of Appeals of the Town of New Castle, Respondents, and Society of Neighbors, Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 920

458 N.Y.S.2d 920

91 A.D.2d 190

In the Matter of The HOLY SPIRIT ASSOCIATION FOR the UNIFICATION OF WORLD CHRISTIANITY, Appellant, v. Gabriel ROSENFELD, et al., constituting the Zoning Board of Appeals of the Town of New Castle, Respondents and Society of Neighbors, Intervenor-Respondent.

Supreme Court, Appellate Division,

Second Department.

Jan. 17, 1983.

Levy, Gutman, Goldberg & Kaplan, New York City, Murray, Bank & Sheer, White Plains, Fischbein, Olivieri, Rozenholc & Badillo, New York City (Jeremiah S. Gutman, New York City, Norman Sheer, White Plains, Herman Badillo, New York City, of counsel), for appellant.

Anderson, Russell, Kill & Olick, P.C., New York City, and Lawrence Dittelman, Town Atty., Chappaqua (Arthur S. Olick, Andrew P. Brozman and Lisa D. Levey, New York City, of counsel), for respondents.

Parker, Chapin, Flattau & Klimpl, New York City (Herbert L. Rosedale, Elliot Cohen, Charles W. Stotter, Michael Friedman and Daniel M. Kolko, New York City, of counsel), for intervenor-respondent.

Before TITONE, J.P., and THOMPSON, WEINSTEIN and BROWN, JJ.

TITONE, Justice Presiding.

Appellant, The Holy Spirit Association for the Unification of World Christianity (hereinafter the Unification Church) is a religious entity, whose members are followers of the Reverend Sun Myung Moon (see Matter of Holy Spirit Ass'n for Unification of World Christianity v. Tax Comm. of City of N.Y., 55 N.Y.2d 512, 526, 450 N.Y.S.2d 292, 435 N.E.2d 662). In this proceeding, the Unification Church, inter alia, challenges a determination of the Zoning Board of Appeals of the Town of New Castle (hereinafter the zoning board) denying its application for a special use permit for the operation of a training and recruitment center in the town. The application was denied on the grounds (1) that the Unification Church did not intend to comply with certain intensity of use provisions set forth in paragraph 60-437.62 of the Code of the Town of New Castle, (2) that the intended use "will place unwarranted, unusual and unreasonable burdens on public facilities and will be detrimental to the public health, safety and welfare" and (3) that the Unification Church deceived the zoning board and violated the provisions of the zoning ordinance while its application was pending. Special Term concluded that these findings were supported by substantial evidence, and dismissed the petition with prejudice insofar as it sought review of the determination of the zoning board.

The proposed use, which is religious in nature, may be prohibited if it is "convincingly shown that [it] will have a direct and immediate adverse effect upon the health, safety or welfare of the community" (see Matter of Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 494, 293 N.Y.S.2d 297, 239 N.E.2d 891). In our view, the evidence in the record failed to so demonstrate. Nevertheless, we affirm the judgment of Special Term. Generally, municipalities should make efforts to accommodate proposed religious uses, subject to conditions reasonably related to land use (see Jewish Reconstructionist Synagogue of North Shore v. Incorporated Vil. of Roslyn Harbor, 38 N.Y.2d 283, 290, 379 N.Y.S.2d 747, 342 N.E.2d 534, cert. den. 426 U.S. 950, 96 S.Ct. 3171, 49 L.Ed.2d 1187). In the instant case, however, the Unification Church's misrepresentations to the zoning board, and its conceded violations of provisions of the zoning ordinance while its application was pending, fully justified the zoning board's denial of a special use permit.

I. THE FACTS

This controversy concerns 97.886 acres of land with frontage on Armonk Road, a major artery, and Tripp Street, a local artery. The subject property is located in a district currently zoned R-2A (two-acre residential). In the 1950's, the previous owners, the Sisters of Cenacle, converted a mansion on the property into a retreat facility with 113 bedrooms. In June, 1976, the Sisters of Cenacle sold the property to two doctors who planned to use it as a facility for the mentally retarded. After the doctors met with financial difficulties and defaulted on their purchase money mortgage, the Unification Church purchased the property in April, 1979 at a foreclosure sale.

In July, 1979 the Unification Church applied for a special use permit pursuant to paragraphs 60-411.15 and 60-432 of the Code of the Town of New Castle, to use the property as a religious retreat center. In its application, it acknowledged that it intended to conduct retreats varying in duration from weekends to 21 and 40 days in length. The application also stated:

"It is anticipated that the number of permanent staff residents would number about ten people with a maximum of twelve. The total number of people participating in one of the retreat workshops would not exceed 70, thus the maximum number of people residing at the proper at any given time would not exceed 82. We would expect a norm of between 40 and 50 people."

On July 25, 1979, at a regular meeting of the zoning board, counsel for the Unification Church stipulated that "[a]bsolutely" no workshops or seminars would be held on the property and no "third persons" would be invited to the property while the application for a special use permit was pending. Thereafter, in a letter dated September 6, 1979, counsel for the Unification Church made the following representations to the Town of New Castle:

"In regard to occupancy of the Cenacle property by the Unification Church pending the Zoning Board of Appeals decision, please be advised that such occupancy will be in accordance with code requirements. There will be no more than three residents who, being unrelated by blood or marriage, will constitute a family under your zoning ordinance. At night, there will be several other people at the property to assure security, but they will not sleep there. During the day, there will be other people at the premises doing work, however, these people will leave each night and sleep elsewhere."

The zoning board held a hearing on the Unification Church's application, and heard testimony that the church engaged in certain undesirable religious practices. There was evidence that the church concealed its true identity when it recruited participants for its religious retreats and when it solicited monetary contributions. A former member of the church testified that participants in religious retreats were allowed only between four and five hours of sleep per night, received an unbalanced diet with an overconcentration of starch, and only spotty medical treatment. Expert testimony indicated that the church used "orchestrated pressure" during religious retreats, including peer pressure, preaching, and sleep deprivation. This regimen was known in the psychiatric community as "indoctrinational thought reform". Such pressures could induce certain individuals to enter psychotic states, or commit violent acts against themselves or others. There were, in fact, isolated instances of suicide within the church.

Testimony was also elicited that the Unification Church provoked certain hostile reactions from the community at large, including the kidnapping of church members for deprogramming. On occasion, certain members of the church had reacted to such hostility with violence. There is no evidence in the record, however, that the Unification Church advocates violence as a proper response to community hostility.

During the course of the hearing, the zoning board learned that the Unification Church was conducting retreats on the subject property in contravention of the zoning ordinance and the stipulation of its attorney that it would not do so. A participant in these retreats testified that he arrived at the site on July 24, 1979, one day before the Unification Church explicitly agreed not to conduct any retreats on the subject property while the application was pending, and stayed for three weeks. The church refused to provide any information with respect to those violations of the zoning ordinance unless and until it received immunity from criminal prosecution. After receiving immunity, the church acknowledged that "[b]etween the dates of April 24, 1979 and September 4, 1979, approximately ten to twelve seven-day workshops were conducted on the Cenacle property."

When members of the zoning board visited the subject property in December, 1979, they also learned that the church was violating its agreement to house no more than three residents unrelated by blood or marriage on the property while the application was pending. They counted "no fewer than twelve separate beds" which appeared to have been made up for sleeping. The church acknowledged that there were six persons unrelated by blood or marriage residing on the subject property, but, by way of explanation, noted that three of those persons slept during the day.

II. RELEVANT CODE PROVISIONS

Paragraph 60-432.1 of the Code of the Town of New Castle provides that the zoning board "may" authorize the issuance of a special use permit for property in a residence district, if "the proposed use will serve a community need or convenience." In this case the proposed use, which is institutional in nature, must also satisfy certain "[i]ntensity of [u]se" requirements set forth in paragraph 60-437.62,whi provides, in pertinent part:

"In no case, however, shall the maximum number of persons permitted to occupy institutional sites amount to more than the number resulting from dividing the total site area by the mimimum lot size requirement for the district in which it is located and multiplying by two (2) to determine the maximum number of persons who shall be permitted to occupy the site on a regular daily basis, and by three (3) to determine the maximum number of persons who shall be permitted to occupy the site at any one (1) time for any purpose. Residents on a permanent basis shall be limited only to those employees and their families necessary for the proper operation and maintenance...