Court Finds Greenburgh Guilty in Fortress Bible Church Case

U.S. District Judge Stephen Robinson found Greenburgh Town Supervisor Paul Feiner and four town councilmen guilty of violating the Fortress Bible Church’s first amendment rights of free speech, free assembly, equal protection and due process in preventing the Mount Vernon church from gaining approval for their application to construct a new facility along Dobbs Ferry Road near the entrance to the Sprain Brook Parkway in Hartsdale. The court also ruled that the town had discriminated against the church under the Religious Land Use and Institutionalized Persons Act or RLUIPA. The decision was issued on August 12, 2010, more than three years after the 2007 trial. The church purchased a 6.53-acre parcel of land in 1998 with the intent to construct a new facility for their congregation that had outgrown their location in Mount Vernon, and now 12 years later, they still have not broken ground.

The ruling cites the town’s intentional delay, hostility and bias toward the church’s application and sanctions the Town of Greenburgh for destroying and failing to produce evidence.  The court ordered the town to grant the church approval to build, and directed the church to submit an application for an award of damages, which is estimated to be $4-$5 million dollars, to be paid by the Town of Greenburgh.

The 206-page court decision tells the story of the church's 12-year battle to gain approval to build their new facility.  Why did the town seek to block Fortress Bible Church from moving to Greenburgh?  The case offers evidence of racial bias against a predominantly African American church being located in a mostly white neighborhood and the town’s displeasure at housing an additional religious facility with tax-exempt status.  However, during the same period, Greenburgh approved new buildings for several other religious and educational institutions, including Solomon Schechter in the same neighborhood, and the Union Baptist Church in predominantly African American Fairview. The town also gave expedited treatment to the Hackley School's application.

The entire history of the church's quest to relocate to Greenburgh is outlined in the decision, which has been summarized below.  You can also see the entire ruling here: FortressBibles.pdf .

In 1998, The Fortress Church had outgrown their facilities in Mount Vernon where they worship and educate at the Fortress Christian Academy. Reverend Dennis Karaman of the Fortress Bible Church found property on Pomander Drive and Dobbs Ferry Road (Route 100B) and advised the Town of Greenburgh of his intent to construct a church and a school on the property. He told the town, “that if the property was not suitable for its intended purpose he would not pursue the purchase.”

The church then made plans to build a church and school that could accommodate a maximum of 500 people in a single structure. Although a church was entitled to build its chapel and school "as of right" in that location under the town's zoning code, the church was nevertheless required to obtain site plan approval, a waiver to construct landscaped parking islands and a variance from the Zoning Board of Appeals for side yard setbacks.

During 1999 the church reformulated their plans based on feedback from the Town of Greenburgh and in January 2000 they submitted a revised site plan, comprehensive traffic study, drainage study, architectural renderings, floor plans, a watershed map, site sections and photographs.  In February 2000, the town’s Building Inspector said that the town’s zoning ordinance required that the church school have “ a curriculum approved by the Board of Regents of the State of New York.”  In fact, non-public school are not required to be registered with the Board of Regents.

The town subsequently failed to put the application before the Planning Board in March, April and May 2000, despite written letters from the Church requesting review.

The town then considered issuing a Positive Declaration indicating that the project would have a significant adverse impact on the environment and necessitating an environmental impact statement. The court found that this requirement prolonged the SEQRA process and caused the church to incur significant expense.

In July, at a work session of the Town Board, Feiner stated that “50 percent of the issue (with the church approval) was traffic and the other 50 percent was the church’s tax exempt status.”  Feiner then asked the church to donate a fire truck to the Fairview Fire District or to make some other payment in lieu of taxes to the Town of Greenburgh. Reverend Karaman understood the request for the donation to be a basis for favorable processing of the application to build the church.  Feiner had made a similar request to the Hebrew Home for the Aged, when it sought permission to build a new facility on Knollwood Road.  The Hebrew Home complied and the town issued the required permits.

In July 2000, after the church declined to purchase the fire truck and make certain other financial contributions requested by Feiner, the town issued a  'Positive Declaration" of potential environmental impact, thereby prolonging the SEQRA process. Their stated reasons were concerns about traffic, pedestrian access and safety, though the Town’s Planning Commissioner found that the church “had developed a good mitigation plan” for the traffic. However, the court found that "the town used the SEQRA process and the issuance of a Positive Declaration punitively because of the church's refusal to make a significant donation of value or monetary payment to the town and because of certain town board members' desire to delay the project and increase the expense of the SEQRA process for the church."

In August 2000, Feiner said that a task force was being formed to lobby for payments in lieu of taxes from the church and in October 2000 the town authorized more traffic studies, many of which had been previously addressed.

In response, in April 2001, the church complied and submitted lengthy documentation to the town including:

• A summary of the potential impact and mitigations
• A description of the impact on community services
• A landscape plan
• A traffic study
• A noise study
• A sketch plan
• A traffic volume and flow illustration
• A table summarizing the impact of each study

Then the town advised the church that it had adopted a moratorium on approval of certain applications that involved, among others, steep slopes, though it was legally impermissible for the town to introduce new legislation to restrict development on an already pending application.

Finally in October 2001, two and a half years after the church filed its initial application the town accepted the application as complete.  The Westchester County Planning Board and the New York State Department of Transportation both founds the plans acceptable.

However, in May 2001, the Reverend met with Feiner to ask what he could do to move the building of the church along, and Feiner again suggested that the church make a monetary contribution -- “pay some taxes to the Fire Department, $1,000 or $1,500, saying, "this will go a long way.”

In an email in December 2001 to a nearby resident who objected to the church, Feiner wrote, “Although I anticipate that the Town will vote against this, I think we have to do as much research as possible re: new federal law which makes it very difficult to stop religious institutions. Any research or ideas you could provide us with to help us would be appreciated. I’ll have the Town work on this but the more ideas the better [.]"  Moreover, the court found that Feiner did, in fact, direct town staff, including the town attorney's office and consultants to perform research and provide ideas for ways in which federal law would support denial of the church's application.

In January 2002 the town hired three new sets of consultants to analyze engineering, planning and traffic aspects of the application. The church met with the Police Chief, town traffic consultants, the Planning Commissioner and the Deputy Town Attorney in March 2002 and again modified their parking plans in April 2002.

The court found that the town used the process to delay and frustrate the church's application. They hired new consultants who raised issues and requested new information that was not in the original scope and was not necessary. Though the church objected to new requests for studies on drainage, fire safety and traffic they continued to supply additional information to the town.  In addition, the town’s attorney’s edited memoranda from their own Planning and Traffic Consultants, striking language that was favorable to the church and an offer to meet with the applicant.

Even though town policy is to meet with applicants to resolve issues, including applicants that are suing the town, they repeatedly refused to the meet with the church to resolve the issue.  In a letter from the church’s planning consultant, he says:

“The town has continued to show no inclination to work toward an agreement. As noted above, you have not set up a meeting where we could discuss technical issues regarding the site plan and determine whether our latest revision is acceptable. And, the town refuses to schedule a public hearing on the site plan. At the same time, your consultants ask for detailed information that goes beyond what is appropriate at this stage in the environmental review.”

The town then demanded that the church pay them for SEQRA review fees, and in January 2003 the Church paid the town $20,000.

Ultimately, In January 2004 the town denied the church’s application in a document that the court declared void because the town violated the NYS Open Meeting Law. They denied them on the basis of a Steep Slope Ordinance, which was not in force at the time the church submitted its application.   The ordinance regulates the disturbance of steep slopes that would be required to build the project.  The court found that the town manipulated calculations to cast the project in a negative light.

At the 2007 trial, the Police Chief and Fairview Fire Chief testified about the traffic and fire objections raised by the town.  Police Chief Kapica said, he “had no idea” why the report said, “Based on testimony of fire and police officials …emergency access to a use that includes place of assembly and school children is not acceptable.”  Fire Chief Mauro’s testimony revealed that the town had fabricated fire safety issues, claiming he had made statements about the impact of the project when in fact he had no objections to it.

In addition to making unfounded objections to retaining walls, traffic and parking, the town violated their own policies of meeting with the applicant to discuss issues and the consultants were directed by the town not to meet with church representatives.

The court found that the majority of town employees and consultants who testified at the trial had significant credibility issues; changing the testimony they gave at depositions or providing testimony that was untrue.  Furthermore, the Town Board destroyed evidence and documents that were relevant to the trial and failed to produce evidence that did exist. The town was sanctioned $10,000 for their spoilation of evidence and failure to comply with discovery.

As the court ruled that the town had discriminated against the Church under the Religious Land Use and Institutionalized Persons Act, the church is now entitled to relief, to cover increased construction costs due to the delay, increased traffic improvement costs, reimbursement for SEQRA fees, consultants and attorney’s fees.  The tab for Greenburgh is expected to be four to five million dollars.

In an email to residents, Feiner defended the actions of the town, writing the following:

I am disappointed with the Order and Opinion of Judge Robinson, issued more than three years after the conclusion of the trial, and on his last day on the federal bench.  It is not appropriate for a Court to substitute its judgment for the judgment of elected municipal officials who relied on the opinions of independent professional traffic consultants during the environmental review process.  Here, in evaluating the church’s application to build a large combined school and church immediately adjacent to the busy entrance to the Sprain Brook Parkway on Dobbs Ferry Road, the town relied on its traffic expert, who advised the town that the project as proposed would cause unsafe and dangerous traffic conditions.  I believe that it would have been irresponsible to disregard this conclusion.  Notwithstanding Judge Robinson’s opinion, I believe that nothing the town did in evaluating the church’s application violated any provision of law. .....  I have always maintained, and continue to maintain, that the town would welcome the Fortress Bible Church at an appropriate and safe location in Greenburgh.

Feiner continues to maintain that there are traffic concerns when the court found that experts and the NYS Department of Transportation had no traffic issues. He also claims the town would "welcome the Fortress Bible School" after twelve years of blocking their attempts to move forward. The town has spent an unknown sum of taxpayer money on legal and consultant fees to block the church and to defend themselves in the lawsuit and now stands to pay $4-$5 million in damages at a time when the budget of the municipality is strapped.

Similar to Westchester County's fate in the Affordable Housing lawsuit, Greenburgh's attempt to stop the church from moving to town will now cost them far more than the lost tax revenue from a tax-exempt institution.