Complaint United States v. City of Port Jervis (S.D.N.Y.)

Date: 
Monday, November 21, 2016
Document Type: 
Complaints

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PREET BHARARA
United States Attorney for the
Southern District of New York
By: SAMUEL DOLINGER
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2677
Fax: (212) 637-2702
E-mail: samuel.dolinger@usdoj.gov

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,
                                                                  No. 16 Civ. 9026
                                 Plaintiff,
                                                                  COMPLAINT
v.

CITY OF PORT JERVIS,

                                Defendant.


       Plaintiff the United States of America (the "United States"), upon information and belief,
alleges for its complaint as follows:

                                                    NATURE OF THE CASE

1.     The United States files this action to enforce the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. ("RLUIPA").


                                        JURISDICTION AND VENUE


2.      This Court has jurisdiction over the subject matter of this action pursuant to 42
U.S.C. § 2000cc-2(f) and 28 U.S.C. §§ 1331, 1345.

3.      Pursuant to 42 U.S.C. § 2000cc-2(f), the United States is authorized to commence
suit against a local government for injunctive or declaratory relief to enforce compliance with
RLUIPA.

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4.      Venue is proper in this district under 28 U.S.C. § 1391(b), because a substantial
part of the events giving rise to the claims in this action occurred in this district.

                                                           PARTIES


5.      Plaintiff is the United States of America.

6.      Defendant, the City of Port Jervis ("Port Jervis" or the "City"), is a "govermnent"
within the meaning of 42 U.S.C. § 2000cc-5(4)(A).


                                                      BACKGROUND

7.      The Goodwill Evangelical Presbyterian Church ("Goodwill Church" or "the
Church") is a religious entity with locations in Orange and Ulster Counties, New York.

8.      In mid-2015, the Church began looking into purchasing property located at 51-55
Front Street (the "Property") in Port Jervis's Central Business District ("CBD").

9.      In May 2015, a pastor of the Church received confirmation from David Rivera, a
Port Jervis building official, that this parcel could be used as a place of worship. The Church
submitted an offer for the Property in June 2015, and a contract was finalized in August 2015.

10.     During approximately the same period in mid-2015, two entrepreneurs were
investigating the purchase of a nearby City-owned property located at 46-48 Front Street in Port
Jervis. The entrepreneurs' ultimate goal is to open a microbrewery and/or gastropub called Fox
N Hare Brewing Co. at the location. According to news accounts, the Mayor of Port Jervis has
supported Fox N Hare's development of this property as a microbrewery and/or gastropub.

11.      In September 2015, the Mayor of Port Jervis expressed concerns to a pastor of the
Church about the Church's use of the Property as a place of worship. He objected that a church
in the downtown area could inhibit growth in the area by restricting businesses that served
alcohol under New York State's Alcoholic Beverage Control laws. See, e.g., N.Y. Alco. Bev.

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Cont. Law § 64(7)(a) (providing that no license for on-premises liquor consumption will be
granted for premises "on the same street or avenue and within two hundred feet of a building
occupied exclusively as a school, church, synagogue or other place of worship").

12.      In response to the Mayor's concerns, the Code Committee of the Port Jervis
Common Council began to consider a local law that would prohibit places of worship and
related facilities in the CBD and Service Commercial District ("SCD") of Port Jervis.

13.      Despite these developments, on November 23, 2015, Port Jervis building official
David Rivera confirmed in a letter to the Church that the Property was in the City's Central
Business District, and that "[p]laces of worship and their related facilities is [sic] an allowed use
in this zoning district." Rivera confirmed that the Church was "in the process of applying for a
building permit for renovations and upon completion and compliance will be issued a Certificate
of Occupancy for a place of worship."

14.      A proposed law banning places of worship from the CBD and SCD under the
City's zoning laws was introduced at a meeting of the Port Jervis Common Council in late
November 2015.

15.      In December 2015, Port Jervis adopted Local Law No. 7 of 2015 ("Local Law
. No. 7"). Local Law No. 7 provides that "places of worship and related facilities shall not be
permitted uses within the Central Business Zoning District and Service Commercial Zoning
District of the City of Port Jervis."

16.      Prior to the passage of Local Law No. 7, Port Jervis permitted as of right the use
ofland in the CBD and SCD for places of worship.

17.      Local Law No. 7 states in a section titled "Legislative Findings and Intent" that
"places of worship may have a detrimental effect on business, commercial[,] and community

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development" in these districts, and asserts that due to "the restrictions set forth for liquor
licenses for restaurants, breweries, micro-breweries, micro-distilleries, pubs and other eating and
drinking establislnnents commonly located within the Central Business Zoning District and
Service Commercial Zoning District of the City, as set forth in the Alcoholic Beverage Control
legislation of the State ofNew York, places of worship and related facilities may deter and
prohibit the location and expansion of business and commercial uses within the Central Business
Zoning District and Service Commercial Zoning District in the City."

18.      Local Law No. 7 also cites "the need for parking" as a motivation for the law.

19.      In February 2016, the City passed Local Law No. 3 of 2016, which permitted the
use of property for microbreweries, brew pubs, breweries, microdistilleries, di.stilleries, wineries,
and tasting rooms in the CBD and SCD. Prior to the passage of Local Law No. 3, these uses had
not been listed among the uses permitted in the CBD and SCD, and bars were specifically
prohibited in the CBD.

20.      The City permits, either conditionally or as of right, the use of property in the
CBD and SCD for clubs and fraternal organizations and nonprofit membership clubs, as well as
libraries, gyms, art galleries, museums, preschools, day-care centers, and nursery schools.

21.      Upon information and belief, uses by nonreligious assemblies or institutions that
continue to be permitted ( either conditionally or as of right) in the CBD and SCD are likely to
have a similar effect on parking, commercial development, and liquor licensing as use for places
of worship or other uses by religious assemblies or institutions.

22.      The passage of Local Law No. 7 prevented the Church from using the Property as
a place of worship, in spite of its reasonable expectation that it would be able to do so, and has
led to the rescission of the Church's contract to purchase the Property. Local Law No. 7 has

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also caused the Church to suffer delay, uncertainty, and expense with regard to its intended
establishment of a permanent place of worship in Port Jervis.


                                       FIRST CLAIM FOR RELIEF
                Equal Terms Claim: Violation of 42 U.S.C. § 2000cc(b)(l)


23.      Paragraphs 1 through 22 are re-alleged and incorporated herein by reference.

24.      Local Law No. 7 is a land use regulation within the meaning of RLUIPA, 42
U.S.C. § 2000cc-5(5).

25.      Local Law No. 7 facially discriminates against religious assemblies.

26.      Through the passage of Local Law No. 7, Port Jervis has banned places of
worship from the SCD and CBD under the City's zoning laws, while continuing to permit
( either conditionally or as of right) similar nonreligious assemblies to locate in the same area,
including clubs and fraternal organizations, nonprofit membership clubs, libraries, gyms, art
galleries, museums, preschools, day-care centers, and nursery schools.

27.      Due to the passage of Local Law No. 7, Port Jervis's zoning laws treat religious
assemblies on less than equal terms with comparable nonreligious assemblies.

28.      Therefore, Port Jervis has imposed and implemented a land use regulation in a
manner that treats religious assemblies or institutions on less than equal terms with nonreligious
assemblies or institutions, in violation of RLUIPA, 42 U.S.C. § 2000cc(b)(l).

                                       SECOND CLAIM FOR RELIEF
                 Substantial Burden Claim: Violation of 42 U.S.C. § 2000cc(a)(l)


29.      Paragraphs 1 through 28 are re-alleged and incorporated herein by reference.

30.      The Goodwill Church entered a contract to purchase the Property with the
reasonable expectation that it could be used for religious purposes.

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31.      The Church's use or conversion of property for the purpose of religious exercise
is considered religious exercise under RLUIPA, 42 U.S.C. § 2000cc-5(7)(B).

32.      At the time that the Church entered into the purchase contract, use of the Property
in the CBD as a place of worship was permitted as of right tmder the Port Jervis zoning laws.

33.      A City representative confirmed in November 2015 that the Church's use of the
Property as a place of worship was permitted under the Port Jervis zoning laws, and that a
Certificate of Occupancy for such use would be issued after the completion of renovations.

34.      The passage of Local Law No. 7 thwarted the Church's reasonable expectation
that it could use the Property as a place of worship, and caused the Church to suffer delay,
uncertainty, and expense with regard to its intended use of the Property.

35.      For the foregoing reasons, Local Law No. 7 substantially burdens the Church's
religious exercise.

36.      Local Law No. 7 affects commerce within the meaning of RLUIPA, 42 U.S.C.
§ 2000cc( a )(2).

37.      Local Law No. 7 does not further a compelling governmental interest, or even if
it does, it is not the least restrictive means of furthering any compelling governmental interest.

38.      Therefore, Port Jervis has imposed and implemented a land use regulation in a
manner that imposes a substantial burden on the religious exercise of the Goodwill Church
without furthering a compelling governmental interest through the least restrictive means, in
violation of RLUIPA, 42 U.S.C. § 2000cc(a)(l).


                                            RELIEF REQUESTED

WHEREFORE, Plaintiff the United States of America respectfully requests that the
Court enter judgment that:

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(a)        declares that the City of Port Jervis's imposition and implementation of Local
Law No. 7 of 2015 violates RLUIPA;

(b)        enjoins the City of Port Jervis, its officers, employees, agents, successors, and
all other persons in concert or participation with them, from imposing or implementing a land
use regulation in a manner that treats religious assemblies or institutions on less than equal
terms with nonreligious assemblies or institutions;

(c)        enjoins the City of Port Jervis, its officers, employees, agents, successors, and
all other persons in concert or participation with them, from imposing or implementing a land
use regulation in a manner that imposes a substantial burden on the religious exercise of the
Goodwill Church or any other person;

(d)         enjoins the City of Port Jervis, its officers, employees, agents, successors, and
all other persons in concert or participation with them, from adopting or enforcing any zoning
law, ordinance, code, or restriction in a manner that violates RLUIPA; and

(e)       grants such other and further relief as the Court may deem just, together with
the United States of America's costs and disbursements in this action.

Dated: November 21, 2016
New York, New York

                                                           PREET BHARARA
                                                           United States Attorney for the
                                                           Southern District of New York
                                                           Attorney for the United States of America
                         
                                              By:          /s/                                
                                                            SAMUEL DOLINGER
                                                            Assistant United States Attorney
                                                            86 Chambers Street, 3rd Floor
                                                            New York, New York 10007
                                                            Tel.: (212) 637-2677
                                                            Fax: (212) 637-2702
                                                            E-mail: samuel.dolinger@usdoj.gov

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Updated November 29, 2016