Local governments in New York may regulate land use within their borders directly through their zoning codes and indirectly by adopting a variety of other statutes and regulations. There are, however, limits to their power. Municipalities, of course, must not discriminate on the basis of religion in violation of the U.S. or New York State Constitutions or other applicable federal or state laws.

That message was delivered loud and clear in a recent decision by the U.S. District Court for the Southern District of New York in a long-running court battle over a proposed rabbinical college in the Village of Pomona, in Rockland County.  In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 07-CV-6304 (KMK)(S.D.N.Y. Dec. 7, 2017), the Court, following a 10-day bench trial, ruled that the Village could not use zoning and other laws it adopted to thwart the construction of the rabbinical college and associated dormitory housing proposed in the community.  In an earlier proceeding to consider the parties’ motions for summary judgment and a punitive motion for sanctions against the Village for the spoliation of evidence, the Court granted portions of each party’s motion, including the sanctions motion that resulted in an award of attorneys’ fees and costs relating to the spoliation dispute.  See Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 7-2007-CV-6304 (KMK)(S.D.N.Y. 2015).  For a more detailed discussion of the pre-trial motions, see Charlotte Biblow’s two-part blog post, How To Spend Over $1.5 Million (And Counting) of Taxpayer Funds Defending A Land Use Claim and Facebook Posts And Text Messages Result In Monetary And Other Sanctions Being Imposed Against A Municipality.

The case involved approximately 100 acres of land in Pomona purchased in 2004 by the Rabbinical College of Tartikov, Inc. Tartikov sought to build a “kollel” or rabbinical college on the property that would include housing for its students – all affiliated with the Orthodox Jewish community, including various sects of the Hasidic community – and the students’ families. According to Tartikov, the on-campus housing would permit students to study from 6 a.m. until 10 p.m. and also to meet their religious obligations to their families.

Tartikov and future students and faculty (collectively, the “Plaintiffs”) commenced an action in 2007 to challenge portions of three laws that Pomona adopted: an “Accreditation Law,” which defined educational institutions and dormitories; a “Dormitory Law,” which limited the size of dormitories; and a “Wetlands Law,” which established wetlands protections in the Village (collectively, the “Challenged Laws”).  The Plaintiffs argued that the Challenged Laws effectively prevented the construction of Tartikov’s rabbinical college in the Village and were discriminatory and substantially burdened their religious exercise.  The Village claimed that the Challenged Laws had been passed for legitimate reasons and were intended to prevent the construction of a large number of housing units for students and their families that the Village contended would overburden its infrastructure and detract from its rural character.

The Court ruled that the Village passed the Challenged Laws “with a discriminatory purpose.”  Specifically, the Court opined that the Village enacted the Challenged Laws to prevent the spread of the Orthodox/Hasidic community within the Village, and, in certain respects, to specifically target Tartikov and the property it owned. The Court said that it based this conclusion “on the context in which the laws were adopted” and “the unsatisfactory and incredible reasons presented for their adoption.”  The Court noted that a number of Village officials had made statements indicative of their prejudice towards Tartikov and Orthodox/Hasidic Jews. The Court also pointed out that members of the community expressed animus towards Orthodox/Hasidic Jews and that the Village’s Board of Trustees “acted on that animus.”

While the Court invalidated the Challenged Laws as a violation of the Plaintiffs’ First and Fourteenth Amendment rights to freely exercise their religion and equal protection of the laws, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., the Fair Housing Act, 42 U.S.C.  3601 et seq., as well as their right to freedom of worship under the New York Constitution, local government officials and their counsel should be guided by the Court’s critical focus on the discriminatory motives behind the Village’s adoption of these laws. The evidence cited by the Court for its conclusions and its application of that evidence to constitutional and statutory standards highlights the official and non-official actions that government officials should avoid when faced with similar circumstances.

In last week’s post, we discussed the case of Congregation Rabbinical College of Tartikov, Inc., v. Village of Pomona. That case involves a contested land use application for a rabbinical college that has cost the Village of Pomona and its taxpayers in excess of $1.5 million in legal fees to defend.  This week’s post looks at the Facebook posts and text messages that were posted and sent after the litigation began, and the sanctions that were imposed by the Court against the Village for its failure to disclose them during discovery.

The Facebook Posts and Text Messages

evidenceIn May 2013, a Village Trustee posted a comment on her personal Facebook page about her disapproval of an all-male gathering of Hasidic/Orthodox Jews at a municipal facility. Their religion was not explicitly mentioned in the Facebook post.  This posting was followed by what the Court described as “an angry text message exchange” between the Village Trustee and the Mayor of the Village, which resulted in the Trustee deleting her Facebook post.

In March 2015, the Mayor posted a comment on his personal Facebook page about an article in a local newspaper. In the posting, the Mayor slammed the 2013  posting by the Trustee (who by then was no longer a Trustee), noted that her 2013 post was particularly egregious in light of the pending lawsuit, was a “total lapse in reason and judgment,” and mentioned that text messages had been exchanged between them at the time.  The Mayor also noted that he couldn’t conceive of anyone considering the former Trustee as a viable candidate if she ever ran for election again, given her “predisposition to making such blatant and inappropriate remarks.”

The Mayor’s Facebook posting was quickly followed by a discovery demand by the plaintiffs asking for all social media postings and comments, including the text message exchange. The Village Defendants responded that the Mayor did not have a copy of the 2013 Trustee Facebook post and produced only a part of the text message exchange.  The part that was produced was an eye-opener.  It had the Mayor asking the Trustee whether it was her “intention to cause damage to the village” and “is it your intent to jeopardize the target…then you are succeeding and may cause us to loose! (sic).”   The portion of the Trustee’s responsive text that was produced noted that the Trustee understood the Mayor’s anger and would review her postings and delete them “to make sure there are no more unfortunate mistakes.”   The Mayor responded that his head was about to explode, that a case in New Jersey found that an official’s comments in a non-official setting led the court to find potential prejudice and publicly commenting on an all-male gathering related to a religious entity “is not good.”

Plaintiffs alleged that the Mayor lied about the preservation of evidence when he certified interrogatory responses in July 2013, two months after the initial Facebook and text message exchange, that all relevant evidence had been preserved by the Village.

The Court Finds The Village Guilty Of Spoliation Of Evidence

In his September 2015 summary judgment decision, the Court ruled that the Village was under an obligation to preserve this evidence. The Court rejected the Village’s contention that its officials did not think the post and texts were relevant, noting that once litigation has commenced, the usual retention procedures must be suspended and a “litigation hold” must be put in place to ensure relevant documents are preserved. In finding the Village guilty of spoliation of evidence, the Court cited to that fact that the lawsuit was commenced in 2007, 6 years before the Trustee’s Facebook page posting, the posting concerned a gathering of individuals of the same religious observation as the plaintiffs, the Mayor’s strong reaction to the posting and the Trustee’s comment about her “unfortunate mistakes” to demonstrate that the Facebook post and text messages should have been preserved and were relevant to the case. The Court also determined that the destruction of this relevant evidence had been done in bad faith.

As a result, the Court ruled that severe sanctions were warranted. These include an adverse inference of the Village’s discriminatory motivation. At trial, the jury will be instructed that the Facebook post indicated discriminatory animus toward the Hasidic Jewish population. While the Village will be allowed to present evidence that the challenged laws were not adopted for discriminatory purposes, the adverse inference may be difficult to overcome. The Court also awarded attorneys fees as a sanction.  In a ruling dated May 25, 2016, the Court directed the Village to pay legal fees totaling $42,940.00 to the plaintiffs’ attorneys.

Click here to read more about the underlying issues. The matter is scheduled for trial sometime later this year.