The Roman Catholic Diocese Of Rockville Ctr. v. The Inc. Vill. Of Old Westbury

• Decision Date: 14 February 2011
• Docket Number: 09 CV 5195 (DRH) (ETB)
• Court: U.S. District Court — Eastern District of New York
• Parties: THE ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, NEW YORK, Plaintiff, v. THE INCORPORATED VILLAGE OF OLD WESTBURY, THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF OLD WESTBURY, MAYOR FRED CARILLO, in his official capacity and individually, TRUSTEE HARVEY BLAU, in his official capacity and individually, TRUSTEE STEVEN GREENBERG, in his official capacity and individually, TRUSTEE HARVEY SIMPSON, in his official capacity and individually, TRUSTEE MICHAEL WOLF, in his official capacity and individually, FREDERICK P. CLARK ASSOCIATES, INC., in its corporate capacity and as planning and land use consultant to the Village of Old Westbury, DAVID J. PORTMAN, in his official capacity as Village Planner of the Village of Old Westbury and individually, TARA M. NESI, in her official capacity as planning and land use consultant to the Village of Old Westbury and individually, MICHAEL MALTINO, in his official capacity as Superintendent of Buildings and Public Works of the Village of Old Westbury and individually, LEGGETTE BRASHEARS & GRAHAM, INC., in its corporate capacity and as groundwater and environmental engineering consultants to the Village of Old Westbury, and THOMAS P. CUSAK Defendants.

THE ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, NEW YORK, Plaintiff,

v. THE INCORPORATED VILLAGE OF OLD WESTBURY, THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF OLD WESTBURY, MAYOR FRED CARILLO, in his official capacity and individually, TRUSTEE HARVEY BLAU, in his official capacity and individually, TRUSTEE STEVEN GREENBERG, in his official capacity and individually, TRUSTEE HARVEY SIMPSON, in his official capacity andindividually, TRUSTEE MICHAEL WOLF, in hisofficial capacity and individually, FREDERICK P. CLARK ASSOCIATES, INC., in its corporate capacity and as planning andland use consultant to the Village of Old Westbury, DAVID J. PORTMAN, in his official capacity as Village Planner of the Village of Old Westbury and individually, TARA M. NESI, in her official capacity as planning and land use consultant to the Village of Old Westbury andindividually, MICHAEL MALTINO, in his official capacity as Superintendent of Buildings and PublicWorks of the Village of Old Westbury and individually, LEGGETTE BRASHEARS & GRAHAM, INC., in its corporate capacity and as groundwater and environmentalengineering consultants to the Village of Old Westbury, and THOMAS P. CUSAK Defendants.

09 CV 5195 (DRH) (ETB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: February14 , 2011

MEMORANDUM & ORDER

APPEARANCES:

WINSTON & STRAWN LLP Attorneys for Plaintiff

By: Eric M. Robinson, Esq.

Vincent A. Sama, Esq.

LEWIS BRISBOIS BISGAARD & SMITH LLP

Attorneys for Defendants The Incorporated Village of

Old Westbury, The Board of Trustees of the Incorporated

Village of Old Westbury, Mayor Fred Carillo, Trustee

Harvey Blau, Trustee Steven Greenberg, Trustee Harvey

Simpson, Trustee Michael Wolf, and Michael Maltino

By: Jason Ederer, Esq.

Peter J. Biging, Esq.

MCCULLOUGH, GOLDBERGER & STAUDT LLP

Attorneys for Defendants Frederick P. Clark Associates, Inc.,

David J. Portman and Tara M. Nesi

By: Evan M. Eisland

WILSON, ELSER. MOSKOWITZ, EDELMAN & DICKER LLP

Attorneys for Defendants Leggette Brashears & Graham, Inc. and

Thomas P. Cusack

By: Anthony B. Corleto

HURLEY, Senior District Judge:

Plaintiff The Roman Catholic Diocese of Rockville Centre, New York ("the Diocese") seeks recovery for alleged violations of the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA") as well as 42 U.S.C. §§ 1983, 1985, and 1986. Presently before the Court are: (1) a motion to dismiss filed by defendants The Incorporated Village of Old Westbury (the "Village"), The Board of Trustees of the Incorporated Village of Old Westbury (the "Board"), Mayor Fred Carillo ("Carrillo"), ¹ Trustee Harvey Blau, Trustee Steven Greenberg, Trustee Harvey Simpson, Trustee Michael Wolf (collectively, the "Trustees"), and Michael Maltino ("Maltino") (collectively, the "Village Defendants") pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), or, alternatively, a motion to strike redundant, immaterial, impertinent, or scandalous matter from the Complaint pursuant to Federal Rule of Civil Procedure 12(f) (Docket No. 29); (2) a motion to dismiss filed by defendants Frederick P. Clark Associates, Inc. ("FPCA"), David J. Portman ("Portman"), and Tara M. Nesi ("Nesi") (collectively, the "FPCA Defendants") pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and a motion for costs and disbursements of that motion, including reasonable attorneys' fees (Docket No. 34); and (3) a motion to dismiss filed by defendants Leggette Brashears & Graham, Inc. ("LBG") and Thomas P. Cusack ("Cusack") (collectively, the "LBG Defendants") pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docket No. 26).² For the reasons stated below, the motions are GRANTED in part and DENIED in part.

BACKGROUND

The following facts are taken from the Complaint, including the voluminous exhibits attached thereto, ³ and are presumed true for purposes of these motions.

The Diocese is a nonprofit religious corporation formed pursuant to an act of the New York State Legislature. The Village encompasses approximately twelve square miles of land in Nassau County, New York. The Board is the legislative governing body of the Village and is comprised of the Mayor and four Trustees. Maltino has been employed by the Village since at least April 2009 as the Superintendent of Buildings and Public Works. FPCA provides community planning, developmental, environmental and transportation consulting services and rendered such services to the Village during the relevant time period. Between approximately 1995 and 2008, Portman "provided his services to the Village through FPCA" and "[t]he Village from time-to-time held him out, and more than one of its Trustees referred to him as the Village Planner." (Compl. ¶ 19.) Nesi, a Senior Associate with FPCA, assumed Portman's role in 2008. LBG provides groundwater and environmental engineering consulting and related services to its clients, including the Village. Cusack is the Senior Vice President of LBG.

I. The Property

In 1993, the Diocese entered into a contract with Old Westbury Farms, Inc. (which is not a party to this action) to purchase approximately ninety-seven acres of land located within the Village (the "Property"). The transaction never closed and the federal government ultimately took title to the Property from Old Westbury Farms, Inc. through a forfeiture proceeding. On March 21, 1995, the Diocese acquired the Property from the federal government and is currently the sole fee owner.

As early as 1993, the Diocese learned of a Village land use ordinance that did not permit the use of land within the Village for the burial of human remains. At the Village's instruction, sometime in 1993 the Diocese submitted an application to the Board for a zoning change with respect to its planned development of the Property as the Queen of Peace Cemetery ("Queen of Peace"). In early April 1995, after the Diocese acquired title to the Property, it asked the Village to proceed with its consideration of the Diocese's request for the required zone change and a special use permit. In May 1995, the Village informed the Diocese that it would be required to present its proposed development plan at a public hearing "to prove" that the development of Queen of Peace "is in accord with the comprehensive plan of the Village." (Compl. ¶ 55.) The Diocese alleges that "as of May 1995 [there was] no such thing as a discernible and objective comprehensive plan adopted to or adhered to by the Village, " and that "the uncertainties and subjectivity of any comprehensive plan were used by the Village as a pretext." (Id. ¶¶ 56, 57.)

In October 1995, the FPCA and Portman provided the Village with a lengthy report opining that the Diocese's proposed development of Queen of Peace constituted a commercial enterprise or business use of property that was inconsistent with the Village's comprehensive plan. After a public hearing held on November 30, 1995, the Board took a formal vote on March 18, 1996 and denied the Diocese's application, concluding that the proposed Queen of Peace was not a religious use of real property but would be a "huge commercial operation outside the Village's framework." (Id. ¶ 63A.)

II. The State Court Action as Described in the Complaint

In 1996, the Diocese commenced what would ultimately become a long and protracted litigation that went back and forth between the New York State Supreme Court, Nassau County (the "State Supreme Court") and the Appellate Division, Second Department (the "Appellate Division") to challenge the Village's zoning ordinance and the Board's denial of the Diocese's application to develop Queen of Peace (the "State Court Action").

Following the Diocese's unsuccessful First Amendment-based constitutional attack onthe portion of the Village's zoning ordinance that prohibited the development of cemeteries within its borders (Compl., Ex. 2 at 17), a non-jury declaratory judgment action was tried before the State Supreme Court to "determine whether plaintiffs' proposed [Queen of Peace project]... would constitute a religious use of property entitling plaintiffs to additional considerations and accommodations under defendants' Zoning Code." (Id. at 1.) In an Order dated November 9, 2000, the State Supreme Court determined that the Diocese's proposed use of the Property to develop a cemetery did constitute conduct for a religious purpose. (Id. at 22.) Therefore, the court annulled the Board's denial of the Diocese's application for a special use permit and remitted the matter to the Board for the issuance of such a permit consistent with its opinion. (Id. at 26-27.) That ruling was made part of a Judgment entered on January 16, 2001. (Compl., Ex. 3.)

In March 2001, the Village enacted amendments to the Village Code (the "2001 Act")

that Plaintiff contends "specifically and impermissibly targets religious institutions and restricts religious practice and in effect prohibits land use within the Village as a cemetery, without regard to the determination" in the State Court Action."⁴ (Id. ¶ 74A.) Meanwhile, the Village appealed the State Supreme Court's November 9, 2000 Order and January 16, 2001 Judgment.⁵ On April 15, 2002, the Appellate Division upheld the trial court's determination that the Diocese's proposed use of the Property was a "religious use, " but found that the "trial court erred in directing the defendant Board... to issue a special permit to the Diocese upon remittitur."

(Compl., Ex. 3 at 1-2.) The Appellate Division found that the Diocese's proposed development of Queen of Peace qualified as a type I action under the State Environmental Quality Review Act ("SEQRA") and, therefore, carried a presumption that such development would likely result in a significant adverse environmental impact. (Id. at 2.) The court found that an Environmental Impact Statement ("EIS") might be necessary. (Id.) Therefore, the Appellate Division remanded the matter to the Board to determine the...