Agenda - Planning Commission - 12/06/2012

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Zoning Bulletin November 10, 2012 I Volume 6 I Issue 21 Religious Land Use and Institutionalized Persons Act of 2000 Citation: Fortress Bible Church v. Feiner, 2012 WL 4335158 (2d Cir. 2012) The Second Circuit has jurisdiction over Connecticut, New York, and Vermont. SECOND CIRCUIT (NEW YORK) (09/24/12)—This case addressed the issue of whether a municipality's use of a statutory environmental review process is within the purview of the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")—and, thus, whether the actions of a municipality during a statutory environmental review process could violate RLUIPA. It also addressed whether a specific municipality's actions violated RLUIPA as well as a church's Free Exercise and Equal Protection rights under the United States Constitution. The Background/Facts: Fortress Bible Church (the "Church") planned to build a worship facility and school on land that it owned in the Town of Greenburgh, New York (the "Town"). To construct its proposed building, the Church required three discretionary land use approvals from the Town: (1) site plan approval from the Town Board (the "Board"); (2) a waiver of a landscaped parking island requirement; and (3) a variance from the Town's Zoning Board of Appeals (the "ZBA") to allow the building to be located closer to one side of the property. Because the Church's proposal required discretionary government approval, it triggered New York's State Environmental Quality Review Act ("SEQRA"), N.Y. Comp.Codes R. & Regs. Tit. 6, §§ 617.2(b), 617.3(a). The SEQRA review process entails several stages. First, the "lead agency" (in this case, the Board) must make an initial determination of environmental significance. If the environmental impact of the proposal is small, the lead agency can issue a negative declaration, meaning there is no potential for significant adverse environmental impact, or a conditioned negative declaration, meaning that the potential for adverse environmental impact can be mitigated by the agency. Alternately, if the lead agency determines that the proposal has the potential for at least one significant adverse environmental impact, the lead agency must issue a "positive dec- laration" and require the applicant to submit an Environmental Impact Statement ("EIS") evaluating the environmental impact of the project. Preparation of an EIS involves several steps. The applicant prepares a scoping document (outlining the scope of the environmental impact), a draft EIS ("DEIS"), and a final EIS ("FEIS"), and must seek feedback at each stage from the public and approval from the lead agency. The Church submitted its initial proposal in November 1998. After submitting a revised proposal in January 2000, the Town's Planning Com- missioner advised the Board that it could issue a Conditioned Negative Declaration. However, after the Church declined the Town's request to donate a fire truck or make some other payment in lieu of taxes, the Board issued a positive declaration, triggering the full SEQRA review process. © 2012 Thomson Reuters 3