CRCT Reply Brief On Cross Appeal PDF

18-0869-cv L , 18-1062-cv XAP
Case 18-869, Document 166, 11/20/2018, 2438559, Page1 of 45
( ) ( )
United States Court of Appeals
for the
Second Circuit
CONGREGATION RABBINICAL COLLEGE OF TARTIKOV, INC, RABBI

MORDECHAI BABAD, RABBI WOLF BRIEF, RABBI HERMAN KAHANA,
MEIR MARGULIS, RABBI MEILECH MENCZER, RABBI JACOB
HERSHKOWITZ, RABBI CHAIM ROSENBERG,
RABBI DAVID A. MENCZER,
Plaintiffs-Appellees-Cross-Appellants,
(For Continuation of Caption See Inside Cover)
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
REPLY BRIEF FOR PLAINTIFFS-APPELLEES-

CROSS-APPELLANTS
SAVAD CHURGIN JOHN G. STEPANOVICH

JOSEPH A. CHURGIN STEPANOVICH LAW, PLC
DONNA C. SOBEL 618 Village Drive, Suite K
55 Old Turnpike Road, Suite 209 Virginia Beach, Virginia 23454
Nanuet, New York 10954 (757) 410-9696
(845) 624-3820
ROMAN STORZER, ESQ.

1025 Connecticut Avenue, NW,
Suite 1000
Washington, DC 20036
(202) 857-9766
Attorneys for Plaintiffs-Appellees-Cross-Appellants
RABBI GERGELY NEUMAN, RABBI KOLEL BELZ, OF MONSEY, RABBI

ARYEH ROYDE, RABBI AKIVA POLLACK,
Plaintiffs,
– v. –
VILLAGE OF POMONA, NY, BOARD OF TRUSTEES OF THE VILLAGE OF
POMONA, NY, NICHOLAS L. SANDERSON, as Mayor, IAN BANKS, as
Trustee and in his official capacity, ALMA SANDERS-ROMAN, as Trustee and
in her official capacity, RITA LOUIE, as Trustee and in her official capacity,
BRETT YAGEL, as Trustee and in his official capacity,
Defendants-Appellants-Cross-Appellees.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1
SUMMARY OF ARGUMENT ................................................................................. 1
I. THE VILLAGE HAS FAILED TO REBUT TARTIKOV’S
ARGUMENT THAT THE DISTRICT COURT
INCORRECTLY DISMISSED ITS “AS-APPLIED”
CLAIMS ................................................................................................3
A. Tartikov could not make any land use application to
permit its use ............................................................................... 3
1. Tartikov’s Second Amended Complaint
contained sufficient allegations demonstrating a
plausible entitlement to relief for its as-applied
claims ................................................................................6
2. No “zone change” is available to Tartikov ....................... 8
3. No “area variance” could permit Tartikov’s use. ........... 13
B. Seeking Legislative Relief to Change the Law Being
Challenged Is Not Required to Challenge Such Law ...............15
C. The Village Has Not Rebutted Tartikov’s Argument
that It Would Be Futile to Apply for Relief. .............................20
II. THE VILLAGE FAILED TO REBUT TARTIKOV’S
ARGUMENT THAT IT PROVED A VIOLATION OF
RLUIPA’S EQUAL TERMS PROVISION........................................24
III. THE VILLAGE FAILED TO REBUT TARTIKOV’S
ARGUMENT THAT IT PROVED A VIOLATION OF
RLUIPA’S TOTAL EXCLUSION PROVISION...............................30
CONCLUSION ........................................................................................................37
i
TABLE OF AUTHORITIES
Page(s)
Cases:
Abbot Labs. v. Gardner,
387 U.S. 136 (1967), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977)..........................................................................17
Ada v. Guam Soc’y of Obstetricians & Gynecologists,
113 S. Ct. 633 (1992).....................................................................................17
Affordable Recovery Hous. v. City of Blue Island,
Civ. No. 12-4241, 2016 WL 5171765 (N.D. Ill. Sept. 21, 2016)..................35
Arnett v. Myers,
281 F.3d 552 (6th Cir. 2002) .........................................................................19
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp.,
462 F.2d 219 (2d Cir. 2006), abrogated on other grounds by Nat’l
Org. for Marriage, Inc. v. Walsh, 714 F.3d 682 (2d Cir. 2013)....................17
BT Holdings v. Chester,
670 F. App’x 17 (2d Cir. 2016) .....................................................................12
Calvary Chapel Bible Fellowship v. Cty. of Riverside,
No. CV16-259 PSG (DTBX), 2017 WL 6883866 (C.D. Cal. Aug.
18, 2017), reconsideration denied, 2017 WL 6820024
(C.D. Cal. Nov. 9, 2017)................................................................................34
Carlton v. Zoning Bd. of Appeals of Bedford,
111 A.D.2d 169, 488 N.Y.S.2d 799 (2d Dep’t 1985) ...................................14
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,
651 F.3d 1163 (9th Cir. 2011) .................................................................26, 29
Church of Our Savior v. Jacksonville Beach,
69 F. Supp. 3d 1299 (M.D. Fla. 2014) ..........................................................27
Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,
138 F. Supp. 3d 352 (S.D.N.Y. 2015) ...........................................................16
Consol. Edison Co. of N.Y. v. Hoffman,
43 N.Y.2d 598, 374 N.E.2d 105 (1978) ........................................................14
ii
Cornell v. Kirkpatrick,
665 F.3d 369 (2d Cir. 2011) ..........................................................................24
DLX v. Kentucky,
381 F.3d 511 (6th Cir. 2004), cert. denied, 544 U.S. 961 (2005) ................. 21
Eagle Cove Camp & Conf. Ctr., Inc. v. Woodboro,
734 F.3d 673 (7th Cir. 2013), abrogation recognized by
Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015) ......................................33, 34
Field Day, LLC v. Cty. of Suffolk,
463 F.3d 167 (2d Cir. 2006) ............................................................................ 4
Gilbert v. Cambridge,
932 F.2d 51 (1st Cir. 1991), cert. denied, 502 U.S. 1051 (1992).................. 21
Guatay Christian Fellowship v. Cty. of San Diego,
670 F.3d 957 (9th Cir. 2011) .........................................................................21
Guatay Christian Fellowship v. Cty. of San Diego,
No. 08CV1406, 2008 WL 4949895 (S.D. Cal. Nov. 18, 2008) ..............12, 13
Hodel v. Va. Surface Mining & Reclamation Ass’n,
452 U.S. 264 (1981).............................................................................3, 16, 23
Hoehne v. Cty. of San Benito,
870 F.2d 529 (9th Cir. 1989) .............................................................12, 19, 20
House Where Jesus Shines, Inc. v. City of Bellmead,
No. W-08-CV-117, 2009 WL 10669584 (W.D. Tex. Sept. 11, 2009) ....35, 36
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U.S. 694 (1982).......................................................................................22
Int'l Church of Foursquare Gospel v. City of San Leandro,
632 F. Supp. 2d 925 (N.D. Cal. 2008), rev’d, 634 F.3d 1037 (9th
Cir. 2011), amended and superseded on denial of reh’g en banc,
673 F.3d 1059 (9th Cir. 2011) .................................................................34, 35
Islamic Cmty. Ctr. for Mid Westchester v.
City of Yonkers Landmark Pres. Bd.,
No. 17-2290, 2018 WL 3323639 (2d Cir. July 6, 2018) ...............................21
Konikov v. Orange Cty.,
410 F.3d 1317 (11th Cir. 2005) .....................................................................29
iii
Lighthouse Inst. for Evangelism Inc. v. City of Long Branch,

100 F. App’x 70 (3d Cir. 2004) .....................................................................36
Lighthouse Inst. for Evangelism, Inc. v. Long Branch,
510 F.3d 253 (3d Cir. 2007) ....................................................................27, 28
Lost Trail LLC v. Weston,
289 F. App’x 443 (2d Cir. 2008) ...................................................................13
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992).....................................................................................22
Murphy v. New Milford Zoning Comm’n,
402 F.3d 342 (2d Cir. 2005) ...................................................................passim
Petra Presbyterian Church v. Northbrook,
409 F. Supp. 2d 1001 (N.D. Ill. 2006), aff’d,
489 F.3d 846 (7th Cir. 2007) .........................................................................35
River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill.,
611 F.3d 367 (7th Cir. 2010) ................................................................... 28-29
S. Pac. Transp. Co. v. Los Angeles,
922 F.2d 498 (9th Cir. 1990) ................................................................... 11-12
Safe Harbor Retreat LLC v. Town of East Hampton,
629 F. App’x 63 (2d Cir. 2015), cert. denied, 137 S. Ct. 74 (2016) .............13
Seling v. Young,
531 U.S. 250 (2001).........................................................................................4
Suitum v. Tahoe Reg’l Planning Agency,
520 U.S. 725 (1997).................................................................................18, 19
Suitum v. Tahoe Reg’l Planning Agency,
520 U.S. 725 (1997).................................................................................22, 23
Sunrise Detox V, LLC v. White Plains,
769 F.3d 118 (2d Cir. 2014) ..........................................................................13
Third Church of Christ, Scientist v. City of New York,
626 F.3d 667 (2d Cir. 2010) ..........................................................2, 27, 28, 29
United States v. Christian Echoes Nat’l Ministry, Inc.,
404 U.S. 561 (1972).........................................................................................4
iv
Unity Ventures v. Lake Cty.,

841 F.2d 770 (7th Cir. 1988), cert. denied sub nom.
Alter v. Schroeder, 488 U.S. 891 (1988) ................................................. 21-22
Vision Church v. Vill. of Long Grove,
468 F.3d 975 (7th Cir. 2006), cert. denied, 552 U.S. 940 (2007) .................33
Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City,
473 U.S. 172 (1985)................................................................................passim
Williamson v. Guadalupe Cty. Groundwater Conservation Dist.,
343 F. Supp. 2d 580 (W.D. Tex. 2004) .........................................................22
Wisconsin Bell, Inc. v. Bridge,
334 F. Supp. 2d 1127 (W.D. Wis. 2004) .......................................................23
Statutes & Other Authorities:

42 U.S.C. § 1983 ......................................................................................................20
42 U.S.C. § 2000cc(b)(1) ...................................................................................24, 26
42 U.S.C. § 2000cc(b)(3)(A) .......................................................................26, 30, 32
42 U.S.C. § 2000cc-2(b) ..........................................................................................26
42 U.S.C. § 2000cc-3(g) ....................................................................................33, 37
J. David Breemer, Ripeness Madness: The Expansion of Williamson
County’s Baseless “State Procedures” Takings Ripeness
Requirement to Non-Takings Claims, 41 URB. LAW. 615 (2009) ................... 5
Village Law § 130-10 ..............................................................................................18
Village Law § 130-11 ..............................................................................................18
v
REPLY BRIEF FOR PLAINTIFFS-APPELLEES-CROSS-

APPELLANTS
INTRODUCTION
Tartikov submits this Reply in Support of its Conditional Cross Appeal, which
puts three distinct questions before this Court. First, with respect to the appeal of
the dismissal of Tartikov’s “as-applied” challenges, Tartikov asks this Court to reject
the Village’s argument that it was required to either “apply” for relief that does not
exist, or petition the legislative body in order to repeal the very laws it is challenging
in this lawsuit. Second, with respect to the adverse judgment on its Equal Terms
Claim, Tartikov asks this Court to reject the conclusion that “libraries and museums”
were not valid comparators to Tartikov’s planned use. Third, as to its Total
Exclusions Claim, Tartikov asks this Court to reject the illogical argument that the
existence of any kind of religious establishment or use in a jurisdiction proves per
se the failure of a claim of Total Exclusion.
SUMMARY OF ARGUMENT
While the Village appears to agree that Tartikov’s “as-applied” challenges to
the Targeted Laws would be ripe if no “meaningful application” to permit the use
were possible, it claims that Tartikov should have applied for a “zone change” or
“area variance.” However, as described below, neither of those options would
1
permit Tartikov’s use. 1 The Village also argues that before an as-applied challenge
could be ripe, Tartikov was required to petition the Village’s Board of Trustees to
repeal the very laws it had just enacted and which prohibit outright Tartikov’s
proposed Rabbinical College. Such an extreme view finds no support in the case
law, and does not involve the “application of government regulations” as generally
required by Williamson Cty. Reg'l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 186 (1985), but rather a change to the regulations themselves.
The Village next argues that the district court correctly held against Tartikov
on its RLUIPA “Equal Terms” claim because “libraries and museums” are not valid
comparators with Tartikov’s use. Given the regulatory purpose and criteria at issue,
both the text of RLUIPA and this Court’s decision in Third Church of Christ,
Scientist v. City of New York, 626 F.3d 667, 670 (2d Cir. 2010), support a finding
that these other nonreligious assembly and institutional land uses are valid
comparators. Further, the text of the Equal Terms provision requires only that “a
religious assembly or institution” not be treated on less than equal terms with “a
nonreligious assembly or institution,” and therefore the fact that secular educational
institutions are also treated on less than equal terms with libraries and museums is
irrelevant.
1
Further, requiring Tartikov to pursue such options would be futile, as the government
agencies lacked discretion to grant them.
2
Finally, the Village argues that all types of religious assemblies must be
excluded from the Village’s jurisdiction in order to find a violation of RLUIPA’s
Total Exclusions provision, and therefore the fact that three houses of worship exist
within the Village means that the provision has not been violated. This is contrary
again to the text of RLUIPA, relevant case law, and the provision’s legislative
history, which review the specific type of religious assembly at issue and not “all”
religious assemblies.
I. THE VILLAGE HAS FAILED TO REBUT TARTIKOV’S

ARGUMENT THAT THE DISTRICT COURT INCORRECTLY
DISMISSED ITS “AS-APPLIED” CLAIMS.
A. Tartikov could not make any land use application to permit its use.
In its response to Tartikov’s cross-appeal, the Village appears to concede the
uncontroversial point that an as-applied challenge to a land use regulation is ripe if
no meaningful application process is available to a landowner. See Response and
Reply Brief for Defendants-Appellants-Cross-Appellees, Docket No. 156 (“VR”) at
56. As discussed below, there was no “administrative relief” that Tartikov could
seek which would permit its use, and therefore no “meaningful application” could
be made. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 297
(1981); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005).
The Village, however, argues that “[a]n as-applied challenge without an
application” is “an oxymoron; . . . .” VR at 54. This misunderstands the operative

3
concepts. The term “as-applied” is not synonymous with “making a land use
application,” and confusing the two is unhelpful. When making a land use
application one is seeking an administrative mechanism for a permit, variance or
other entitlement to use land for a specific purpose. A legal challenge is “as-
applied” if it challenges the application of a law to a particular claimant to determine
if their rights have been deprived:
An “as-applied challenge,” . . . requires an analysis of the facts of a

particular case to determine whether the application of a statute, even
one constitutional on its face, deprived the individual to whom it was
applied of a protected right.
Field Day, LLC v. Cty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006); see also Seling
v. Young, 531 U.S. 250, 271 (2001) (“[t]ypically an ‘as-applied’ challenge is a claim
that a statute, ‘by its own terms, infringe[s] constitutional freedoms in the
circumstances of [a] particular case.’” (quoting United States v. Christian Echoes
Nat’l Ministry, Inc., 404 U.S. 561, 565 (1972) (per curiam) (emphasis in original))).
The two concepts are distinct.
While it is true that the courts have developed--beginning in the Takings
context and extending to other claims involving land use--a unique doctrine
requiring a “meaningful application” to be made before an as-applied claim is
viewed as ripe, if no meaningful application can be made, the lack of any application
cannot foreclose an “as-applied” challenge, as the district court erroneously held.
Otherwise, a zoning code that prohibited outright the exercise of fundamental rights
4
would be immune from challenge if it did not allow any administrative means to
engage in such activity. Such an absurd result cannot be compelled by the courts’
expansion2 of ripeness limitations in the land use context.
As described below, the Plaintiffs’ Second Amended Complaint contained
various allegations stating a plausible claim that the Village’s zoning regulations
prohibited outright Tartikov’s protected activity. The Village’s argument that a
“zone change” or an “area variance” could permit the use is wrong for the reasons
described below. The Village’s final argument, that Tartikov cannot make an as-
applied challenge until it petitions the Village’s Board of Trustees to repeal or amend
the very laws it is challenging (the so-called “text amendment”) is absurd. As
discussed below, this would not be an “application of the regulations to the property
at issue[,]” Williamson Cty., 473 U.S. at 186, but rather an attempt to have the
regulations themselves repealed. Such an interpretation is not supported by any
precedent.
2
See J. David Breemer, Ripeness Madness: The Expansion of Williamson County’s
Baseless “State Procedures” Takings Ripeness Requirement to Non-Takings Claims, 41 URB.
LAW. 615 (2009).
5
1. Tartikov’s Second Amended Complaint contained sufficient

allegations demonstrating a plausible entitlement to relief for
its as-applied claims.
The Village argues that Tartikov cannot rely on “certain findings by the
District Court in its Decision after trial.” VR at 61 (emphasis in original). However,
these same facts were alleged in Tartikov’s Second Amended Complaint, upon
which the challenged motion to dismiss decision was based. These allegations
include:
The Village’s Zoning Code forbids the Rabbinical College’s use

throughout its entire jurisdiction. In addition, the Village has enacted
several new ordinances designed specifically to prevent the Plaintiffs’
use. The Congregation has no administrative means of using its
property legally as a Rabbinical College.
(A67) (emphasis in original). Further, Tartikov alleged:
88. The entire area of the Village of Pomona falls within its “R-40
District”, . . . .
....
91. The Village Code does not permit the Rabbinical College (along
with its residential component to exist anywhere in the Village of
Pomona, either as a “matter of right” or by special use permit.
....
93. The Village Code does not permit an unaccredited religious

educational institution such as the Rabbinical College to operate
anywhere within the Village of Pomona.
94. The Village Code does not permit, as a “matter of right” or by

special use, any religious educational facilities with a residential
component for the religious education students and their families.
6
95. The Village Code explicitly states that “All uses listed hereunder
are permitted in the R-40 District; all others not listed are prohibited,
except as provided in §§ 130-10 and 130-11.” Village of Pomona
Zoning Code, Article IV (Use Regulations), § 130-9 (Permitted Uses),
paragraph A.
....
215. Defendant Sanderson stated in his July 3, 2007 letter that the only
remedy available for the Rabbinical College were legislative ones.
....
221. Further, under New York law and the Village’s Zoning Code, the
Village’s Zoning Board of Appeals lacks any authority to issue a
variance for the Congregation’s use of the Subject Property as a
Rabbinical College.
222. Defendants lack any authority to grant a special use permit,

because such a permit can only be issued to “accredited” institutions by
the New York State Education Department or “similar accrediting
agency”. There is no accrediting agency that can accredit the
Congregation’s use of the Subject Property. There is also no special
use permit provision for the necessary housing component of the
Rabbinical College.
(A85-87, A111-112.) Although the district court dismissed Tartikov’s as-applied
challenges to the Targeted Laws on a motion to dismiss, it is significant that each of
these relevant allegations was proven at trial, demonstrating conclusively the
plausibility of such claims. Regardless, the Village ignores the allegations of
Tartikov’s Second Amended Complaint in its opposition.
7
2. No “zone change” is available to Tartikov.
Although Tartikov’s Second Amended Complaint contained the very specific
allegation that it “has no administrative means of using its property legally as a
Rabbinical College” (A67), and therefore its as-applied claims should have survived
the motion to dismiss, the Village claims that Tartikov could have applied for
something called a “zone change[,]” VR at 56-58. However, there was no such
procedure available to Tartikov. See generally TE776-843 (Village of Pomona
Zoning Law). The Village Attorney testified at trial that Tartikov could “apply for
a zone change” 3 without referring to any Code provision as support for such
statement. TE1885; A1397. The Village admitted that there is no separate “zone
change” procedure other than trying to have the Village’s legislative body change
its laws through a “text amendment.”4 (A775 n.14, A1303-1304.)
As the district court found, “Ulman has suggested that Tartikov can apply for
a ‘zone change,’ (Ulman Aff. ¶ 87), but a zone change would require an amendment
to the zoning law.” A775 n.14; see also A838 (“Text amendments and zone changes
are the same thing. A zone change requires an amendment to the zoning law.”).
The Village confirmed this at trial:
Q. Now, Ms. Ulman, I want to ask you a few questions about zone
change. Your affidavit at paragraph 15 mentions zone changes.
3
This is the “very procedure recommended by the Village” referred to by the Village. VR
at 57.
4
“Text amendments” are addressed below.
8
And my question, ma’am, is where in the zoning code does it talk

about zone changes as you've reflected in your affidavit at
paragraph 15?
A. That's authorized by the amendment article. An amendment -- a
zone change is in the nature of an amendment to the zoning law,
because what you're doing is changing the zoning map, and
you're -- if you were creating a new zone, you would be including
that language within the zoning law as an amendment to the -- to
the law itself.
Q. So then, if I understand your testimony, then that process would
fall under the petition for an amendment; is that true?
A. I believe so, yes.
Q. How many zones are there in the Village?
A. One.
Q. Which zone could Tartikov change its property to in order to be
allowed?
A. They would propose a new zone.
Q. So, Tartikov then could not petition for a zone change; isn't that
true?
A. Well, we call it a zone change. It would be very difficult to call
it a zone increase. Zone change covers any -- and this is not only
in Pomona, I mean, this is all over. Occasionally, a developer will
apply for a new zone that doesn't exist within your current code
to accommodate what he wants to do on a particular piece of
property. And in that case, we still call it a zone change because
you're changing the existing zone to a different one.
Q. All right. And that process, then, would fall under your prior
testimony and that would be under a petition for amendment?
A. Yes, yes.
Q. And as you indicated, a new zone would have to be created; isn't
that true?
9
A. Yes. The applicant would propose what it is he wants to do, a

zone that encompasses what it is that he wants to do.
(A1303-1304.)
Pomona also previously admitted this in prior proceedings:
MS. ULMAN: In that chapter, it sets forth the procedure for applying
for an amendment to the zoning law, including any
amendment to a use or a district. So that if the
applicants wanted to change the law with respect to the
accreditation, for example, which is one of their issues,
they would petition the Board of Trustees, go to a
public hearing, and the Board would make a
determination, a SEQRA determination, which would
be the environmental portion of it --
THE COURT: Right. Yes.
MS. ULMAN: -- and then a decision on the zone change. If they --
THE COURT: Is that what it's called, though? Is it a zone change or
it's an amendment?
MS. ULMAN: Yes, it's an amendment to the zoning law. We call it a
zone change.
THE COURT: Okay.
MS. ULMAN: But it’s -- it would be an amendment to the law, which
now does not permit unaccredited schools.
(A152-153.)
And again:
MS. ULMAN: The letter that was referred to by Mr. Stepanovich was
after a conversation between Mr. Savad and myself, at
which time we both agreed that the so-called college
not being accredited was not in compliance with the
Village Law. And Mr. Savad was asking for a private
meeting to discuss that, and my comment was, “there's
no point in having a private meeting, because it's not
10
going to accomplish anything. Apply for the zone

change, and then the Village can” --
THE COURT: But they can’t get it. They need an amendment, not a
zone change, right? They need an amendment.
MS. ULMAN: They need an amendment, yes.
THE COURT: Okay. Okay.
MS. ULMAN: It would be an amendment to one of our laws, yes.
THE COURT: All right. Well, let’s pick up on that, Ms. Hamilton,
because the question is whether it’s one of semantics or
is it really what defeats your argument on ripeness.
That -- you know, put it this way. I think maybe another
way plaintiffs will phrase it, if the New York State
legislature passes an invalid law, the fact that you
could, you know, say “let’s have a do-over on the law”
doesn’t mean that the people can’t challenge the
constitutionality of the law. And that really Article 11
is not a zone change, it’s not a variance, it’s not SUP.
It is “go back to the legislative body of the town and
change the law.” And, you know, is that really, is that
covered by Williamson and Murphy and so forth?
(A229-230.) Thus, it is untrue that “Tartikov could have applied for a zone change,”
VR at 56-57, in any way that is distinct from seeking to change the zoning laws
themselves. The Village’s suggestion that a “zone change” and a “text amendment”
are two different things, see VR at 57 (“a zone change or text amendment”) is
inaccurate and misleading.
The Village cites multiple Courts of Appeals decisions to attempt to support
the position that Tartikov could have sought relief through a “zone change.” VR at
57-58, 60, 62. Citation to this authority is also misleading. In S. Pac. Transp. Co.
11
v. Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), the court did not rest its decision
on the applicants’ ability to apply for a zone change, nor did it mention a zone change
as a way for them to satisfy the meaningful application requirement. Id. at 504. It
merely cited another case in which a zone change was a possibility. Id. at 503-504.
In fact, in the case relied upon by the Village, the Ninth Circuit actually held the
opposite: that the case was ripe even though the plaintiff could have sought rezoning.
Hoehne v. Cty. of San Benito, 870 F.2d 529, 534-35 (9th Cir. 1989). Regardless,
there is only one zoning district in Pomona, and therefore no possibility for a
favorable “zone change” exists. A732, A1303.
Similarly, in the unpublished decision of BT Holdings v. Chester, 670 F.
App’x 17 (2d Cir. 2016), the property at issue “lacked any zoning” and the Court
noted that the plaintiff never “formally petitioned the Village Board to apply one of
the Village of Chester’s zoning districts to its property . . . .” Id. at *18-*19
(emphasis added). The Court found that a use variance or site plan application would
still have been required for the as-applied challenge to be considered ripe. Id. at *19
(citing Murphy, 402 F.3d at 347). Here, again, there is no zoning district within the
Village that would permit Tartikov’s use, either by right, with a special exception,
or with a variance. Supra, TE634, TE648, TE669.
The trial court in Guatay Christian Fellowship v. Cty. of San Diego, No.
08CV1406, 2008 WL 4949895 (S.D. Cal. Nov. 18, 2008), also rested its decision on
12
the availability of a zone change. Id. at *5. In that case there existed zoning districts
where the applicants’ use would be permitted, making a zone change request
appropriate. Here, the single zoning district in Pomona would preclude that
possibility for Tartikov.
The other authorities cited by the Village are inapposite because they deal
with some type of administrative relief that was available to the landowner that was
not a “zone change.” See Safe Harbor Retreat LLC v. Town of East Hampton, 629
F. App’x 63, 65 (2d Cir. 2015) (special permit), cert. denied, 137 S. Ct. 74 (2016);
Sunrise Detox V, LLC v. White Plains, 769 F.3d 118, 124 (2d Cir. 2014) (plaintiff
could have “pursue[d] an administrative appeal or an application for a variance”);
Lost Trail LLC v. Weston, 289 F. App’x 443, 445 (2d Cir. 2008) (plaintiff failed to
seek subdivision approval from the planning and zoning commission and did not
appeal the rejection of its building permit to the zoning board of appeals).
3. No “area variance” could permit Tartikov’s use.
The Village next suggests that Tartikov’s use could be permitted with an “area
variance.” VR at 58-59. This argument is as baseless as the claim that a “zone
change” is available. First, there is no evidence supporting the Village’s argument.
The only evidence related to area variances is a statement by Ulman that “[t]he
Village ‘Zoning Board[] of Appeal[] has authority to grant use or area variances to
a property owner.’” VR at 58 (quoting TE1885). There was no testimony or other

13
evidence supporting the notion that Tartikov’s use could have been permitted by an
area variance.
More importantly, an “area variance” is “a variance of the lot area or other
dimensional requirements of this chapter,” as opposed to a “use variance.”5 TE828
(emphases added). See Consol. Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598, 606-
07, 374 N.E.2d 105, 108 (1978) (“An ‘area’ variance is one which does not involve
a use which is prohibited by the zoning ordinance, while a ‘use’ variance is one
which permits the use of land which is proscribed . . . .”). “If the use is not permitted,
an area variance is insufficient . . . .” Carlton v. Zoning Bd. of Appeals of Bedford,
111 A.D.2d 169, 170, 488 N.Y.S.2d 799, 800 (2d Dep’t 1985).
Tartikov never challenged the “lot area” or “dimensional requirements” of the
Targeted Laws as prohibiting its use. Rather, it challenged the prohibition on student
family housing and on non-accredited educational institutions. The “use” that is
permitted is an “Educational Institution,” which includes “Dormitories” as an
accessory use. TE780, TE797. An Educational Institution is a school or college that
is accredited, according to Village law. TE781. A Dormitory prohibits, by
5
A use variance, by contrast, applies where “an applicant desires to utilize land for a use
not allowed in the district in which the land is located, . . . .” TE828. While a use variance
procedure is available under the Village’s laws, all parties agree that it would not be available for
Tartikov’s property. VR at 56 (“[I]t was undisputed that Tartikov could not obtain a use variance
(A280-281), . . . .” (emphasis in original)). “Tartikov cannot establish that the Challenged Laws
have deprived it of economically reasonable use or value of the Subject Property, as it may be
developed with single family residences.” A732.
14
definition within the Village’s Code, “[s]ingle-family, two-family and/or
multifamily dwelling units” and “separate cooking, dining or housekeeping facilities
. . . .” TE780. These are not “dimensional” requirements, but rather laws that define
the use itself. As the Court held in Murphy, one of the reasons requiring a
meaningful application to be made is that “a variance might provide the relief the
property owner seeks without requiring judicial entanglement in constitutional
disputes.” Murphy, 402 F.3d at 348 (emphasis added). An “area variance” cannot
provide this type of relief.
The Village’s argument that “area variances” are appropriate is pure
imagination, and therefore its claim that “Tartikov cannot attempt to argue now that
area variances are unavailable or futile” rings hollow. VR at 59.
B. Seeking Legislative Relief to Change the Law Being Challenged Is

Not Required to Challenge Such Law.
Putting aside the distractions of a “zone change” and “area variance”, the only
theoretical way that Tartikov’s use could ever be permitted is if the Village repealed
or amended the very laws that Tartikov is challenging.6 This is the legislative
process that the Village is referring to when it describes an “application” for a text
6
It is misleading to call such a process an “application” or to suggest that Tartikov could
“appl[y]” for an amendment to the laws. See VR at 56-57, 60. It is a “petition” to the Board of
Trustees to “amend, supplement, repeal or change the regulations and districts established under
this chapter.” TE839. “Therefore, no matter what Defendants want to call the process, Defendants
contend that “Plaintiffs cannot succeed . . . until they request an amendment to the Village Code.”
A838.
15
amendment. VR at 60 n.41. See Congregation Rabbinical Coll. of Tartikov, Inc. v.
Vill. of Pomona, 138 F. Supp. 3d 352, 417 (S.D.N.Y. 2015) (holding that a “text
amendment is a legislative process”) (internal quotation marks omitted). As
described above, the Village has admitted that only an amendment to the Village’s
zoning laws would permit the use. A732. See also VR at 62 (“Had Tartikov applied
for the . . . text amendment, the Board might have altered the very provisions that
the District Court found ‘preclude the rabbinical college from being built.’”).
Obviously, no case law exists to support the absurd proposition that a plaintiff
must first petition the legislative body to repeal a law that infringes on its civil and
constitutional rights before a challenge to such law is “ripe.” Williamson County
does not demand such a result, as it speaks only to the “implementing the
regulations” and not changing the regulations themselves:
As the Court has made clear in several recent decisions, a claim that the
application of government regulations effects a taking of a property
interest is not ripe until the government entity charged with
implementing the regulations has reached a final decision regarding the
application of the regulations to the property at issue.
Williamson Cty., 473 U.S. at 186; see also Murphy, 402 F.3d at 351 (issue is whether
“a final, definitive decision from the entity charged with implementing the zoning
regulations.”); Hodel, 452 U.S. at 297 (“There is no indication in the record that
appellees ha[d] availed themselves of the opportunities provided by the Act to obtain
administrative relief by requesting . . . a variance from the [applicable provisions of
16
the Act]” (emphasis added)). The Village has made a “final, definitive decision”
prohibiting Tartikov’s use outright by the Board of Trustees enacting the
prohibitions. There is no further “implementation” of the Targeted Laws that can
possibly change that. As the parties agree, the regulations prohibit Tartikov’s use
without the possibility of a variance, special permit, or any other implementation of
the regulations at issue.
An as-applied challenge is one where “the plaintiff contends that application
of the statute in the particular context in which he has acted, or in which he proposes
to act, would be unconstitutional. The practical effect of holding a statute
unconstitutional ‘as applied’ is to prevent its future application in a similar context,
but not to render it utterly inoperative.” Ada v. Guam Soc’y of Obstetricians &
Gynecologists, 113 S. Ct. 633, 633 (1992). Such challenges are used to invalidate
the “personal application” of a statute, rather than all applications of a statute.
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.2d 219, 228 (2d Cir. 2006),
abrogated on other grounds by Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682
(2d Cir. 2013). The ripeness doctrine’s “basic rationale is to prevent the courts,
through avoidance of premature adjudication, from entangling themselves in abstract
disagreements . . . .” Abbot Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated
on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Here, no further
factual development is necessary, and the disagreement is far from “abstract” as all
17
parties agree that Tartikov’s use is prohibited outright by the Targeted Laws being
challenged.
By prohibiting the use (a non-accredited educational institution with student
family housing) outright, these laws have been applied to the Plaintiffs. Village law
makes clear that all uses not permitted in the R-40 District “are prohibited, except as
provided in §§ 130-10 and 130-11.” TE789. Village law also provides that “[n]o
building shall be erected, constructed, moved, altered, rebuilt or enlarged, nor shall
any land, water or building be used, designed or arranged to be used, for any purpose
except in conformity with this chapter.” TE803. It is undisputed that sections 130-
10 and 130-11 do not permit Tartikov’s use. TE789-800. It is also undisputed that
Tartikov cannot obtain a use variance for its use, and no reasonable argument can be
made that an “area variance” would permit the prohibited use. See supra.
This presents a situation similar to that in Suitum v. Tahoe Reg'l Planning
Agency, 520 U.S. 725, 739 (1997), where the court held that a failure to obtain a
final decision did not render the matter unripe:
The demand for finality is satisfied by Suitum’s claim, however, there

being no question here about how the “regulations at issue [apply] to
the particular land in question.” Williamson County, supra, at 191, 105
S. Ct., at 3119. It is undisputed that the agency “has finally determined
that petitioner’s land lies entirely within an SEZ,” Brief for Respondent
21, and that it may therefore permit “[n]o additional land coverage or
other permanent land disturbance” on the parcel, TRPA Code § 20.4.
Because the agency has no discretion to exercise over Suitum’s right to
use her land, no occasion exists for applying Williamson County’s
18
requirement that a landowner take steps to obtain a final decision about

the use that will be permitted on a particular parcel.
520 U.S. at 739. There was no question about the “regulations at issue” in Suitum,
as there is no question here.
Nowhere did the Court in Williamson County ever suggest, as the Village
argues, that a challenge to the application of government regulations is not ripe until
the governmental entity charged with enacting legislation is petitioned by the
claimant to amend or repeal the regulations at issue themselves. “Amending the
regulations” is not “implementing the regulations.”
Because no implementation of the regulations would permit Tartikov’s use,
its as-applied claims are ripe. Courts have interpreted Williamson County to hold a
claim ripe where no provision for obtaining just compensation was available under
state law. See, e.g., Arnett v. Myers, 281 F.3d 552, 564 (6th Cir. 2002) (takings
claim was ripe where “Tennessee law has revealed no reasonable, certain, and
adequate provision for obtaining just compensation that was available . . . at the time
of the alleged takings in this case”); Hoehne, 870 F.2d at 533 (in an action alleging
a taking in connection with the denial of a subdivision application, claim was ripe
because at the time of the denial “California law prohibited actions seeking just
compensation as a remedy for regulatory takings”). In no case has any court held
that a takings claim was not ripe, even though there was no provision for obtaining
just compensation, because the claimant had not first attempted to petition the state
19
legislature to adopt a new law making such compensation available. Claims brought
under section 1983, RLUIPA and the Fair Housing Act should fare no worse.
C. The Village Has Not Rebutted Tartikov’s Argument that It Would Be

Futile to Apply for Relief.
The Village’s argument regarding the “futility” exception is merely a reprise
of its earlier refrains, addressed above. It claims that “it was not clear that any
application here would have been denied” and that “the Village Attorney had just
invited an application.” VR at 60. Again, this refers to the Village Attorney’s
suggestion that Tartikov “apply” for a “zone change,”7 which in reality was just a
suggestion that the Board of Trustees could repeal the Targeted Laws. 8 This is not
“an appeal to a zoning board of appeals or seeking a variance . . . .” Murphy, 402
F.3d at 349. The Court held in Murphy that “a property owner need not pursue such
applications when a zoning agency lacks discretion to grant variances[,]” not that it
7
The Village also mentions an “area variance,” VR at 60, but again does not (and cannot)
explain how an area variance could permit Tartikov its proposed use. See supra.
8
Even if “implementing the laws” were to be understood to include “changing the laws,”
requiring such an effort would be futile. This situation is similar to that in Hoehne, 870 F.2d at
535, where the court held that “it would have been futile for the Hoehnes to seek a General Plan
amendment in their favor, because the supervisors had amended the General Plan in a manner
clearly and unambiguously adverse to the application of the landowners.” As the district court
held, “[t]he amendment process thus leaves Plaintiffs at the mercy of the same body that has a
now-proven history of discriminating against them. This history demonstrates that a zoning
amendment does not represent a feasible solution.” A838. Further, as the parties have stipulated,
“[u]nder New York State law, the Village Board is not required to act on a petition for an
amendment to a zoning law.” A732; A1300.
20
must also attempt to change the laws at issue. Id. (emphasis added). Such an
expansion of Williamson County is unwarranted.
The cases cited by the Village are all inapposite, because there was some
potential relief through the implementation of land use regulations that could have
permitted the proposed use. In Islamic Cmty. Ctr. for Mid Westchester v. City of
Yonkers Landmark Pres. Bd., No. 17-2290, 2018 WL 3323639, at *3 (2d Cir. July
6, 2018), the plaintiff “failed to apply for the ‘certificate of appropriateness’ that
would, if granted, enable them to pursue their construction projects despite the
landmark designation.” There was no suggestion that the government body lacked
discretion to grant such relief, nor did this Court suggest that the plaintiff must
petition Yonkers’ City Council to amend its landmarking laws. In Guatay Christian
Fellowship, the Ninth Circuit noted that the “Church has presented no evidence that
the County will not or cannot issue a Use Permit once it has received a complete
application, . . . .” Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957,
981-82 (9th Cir. 2011). In DLX v. Kentucky, 381 F.3d 511, 525 (6th Cir. 2004), cert.
denied, 544 U.S. 961 (2005), the plaintiff could have applied for a permit “that the
officer might have been willing to approve . . . .” In Gilbert v. Cambridge, 932 F.2d
51, 54, 61 (1st Cir. 1991), cert. denied, 502 U.S. 1051 (1992), the plaintiff never
sought a “removal permit” that existed under the city’s code to allow the conversion
of a controlled rental unit into a cooperative or condominium. In Unity Ventures v.
21
Lake Cty., 841 F.2d 770, 776 (7th Cir. 1988), cert. denied sub nom. Alter v.
Schroeder, 488 U.S. 891 (1988), the plaintiff failed to seek “formal approval of his
request for a sewer connection from the Grayslake Board of Trustees at a regular
meeting.”
Further, a plaintiff cannot be required to make “one application,” VR at 59-
61, where no application opportunity exists. See, e.g., Williamson v. Guadalupe Cty.
Groundwater Conservation Dist., 343 F. Supp. 2d 580, 598-99 (W.D. Tex. 2004)
(“Because state law does not provide for condemnation of groundwater, it is futile
to require plaintiffs to seek just compensation through an ‘inverse condemnation’
proceeding regarding the denial of their groundwater permit applications and
plaintiffs’ taking claim is ripe, . . . .”). The Village fails to distinguish Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1013 (1992), and Suitum v. Tahoe Reg’l Planning
Agency, 520 U.S. 725, 739 (1997). In both cases there was no discretion (like here)
to grant the requested relief. In Lucas, the fact that the parties stipulated that an
application would be “pointless” (the fact mentioned by the Village, VR at 62), could
not confer Article III jurisdiction on a federal court, if the case would otherwise have
been unripe. “[N]o action of the parties can confer subject-matter jurisdiction upon
a federal court. Thus, the consent of the parties is irrelevant, California v. LaRue,
409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972), . . . .” Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). And Suitum involved
22
a lack of discretion similar to that which exists here. The fact that the landowner in
Suitum could have petitioned the regional planning agency to change the zoning
regulations at issue did not render the case unripe. See Suitum, 520 U.S. at 736-37
(distinguishing Hodel as requiring that, “where the regulatory regime offers the
possibility of a variance from its facial requirements, a landowner must go beyond
submitting a plan for development and actually seek such a variance to ripen his
claim.” (emphasis added)).
Finally, the Village takes issue with the reference to findings by the district
court at trial. They misread the precedents cited. All relevant facts occurred before
the case was filed; the district court’s recognition of such facts does not render them
“subsequent events.” Wisconsin Bell, Inc. v. Bridge, 334 F. Supp. 2d 1127, 1137
(W.D. Wis. 2004). These facts--which generally relate only to Tartikov’s proposed
use and the Village’s laws--are not “subsequent evidence” (VR at 61) that the Court
should ignore. Regardless, the allegations of the Second Amended Complaint
clearly state, inter alia, that “[t]he Village’s Zoning Code forbids the Rabbinical
College’s use throughout its entire jurisdiction. . . . The Congregation has no
administrative means of using its property legally as a Rabbinical College,” and that
the Village lacks discretion to grant any application permitting such use of the
property. A67. Tartikov’s as-applied claims therefore should not have been
dismissed.
23
II. THE VILLAGE FAILED TO REBUT TARTIKOV’S ARGUMENT

THAT IT PROVED A VIOLATION OF RLUIPA’S EQUAL TERMS
PROVISION.
With respect to Tartikov’s claim that the Village treats its proposed religious
assembly and institution on less than equal terms as other nonreligious assembly and
institutional land uses, namely libraries and museums, 42 U.S.C. § 2000cc(b)(1), the
Village first argues that the appropriate standard of review of the district court’s
decision is clearly erroneous and not de novo. VR at 63 n.44. Although Tartikov
agrees that the district court’s holding involved mixed questions of law and fact,
since its legal conclusions predominate in its decision on this claim, 9 see Cornell v.
Kirkpatrick, 665 F.3d 369, 380 (2d Cir. 2011), the appropriate standard of review is
de novo. The principal basis for the district court’s determination is whether the
Equal Terms provision of RLUIPA requires a court to examine whether “a religious
assembly” is treated on less than equal terms with “a nonreligious assembly or
institution” (as stated in RLUIPA’s text), or whether it must compare “all” uses
within the disfavored classification of uses with “all” favored nonreligious assembly
and institutional land uses. A857 (emphases in original). This is a legal question.
9
The Village does not dispute the factual issues that (1) Tartikov’s proposed use is treated
on less than equal terms as libraries and museums because the Targeted Laws limit the former to
approximately one-half the size as the latter uses; and (2) libraries and museums would have equal
or greater impacts on the stated regulatory purposes as Tartikov’s proposed use. VR at 63-66.
Rather, it focuses its argument on what constitutes a proper comparator under the Equal Terms
provision, a legal issue. Id.
24
As the lower court recognized, Tartikov “established . . . that the Village Code
treats educational institutions differently than libraries and museums[,]” but opined
that because secular educational institutions are also treated worse than libraries and
museums, there is no Equal Terms violation. A857. This is based in part on the
court’s view of Tartikov’s claims as only being facial challenges to the Targeted
Laws. Id. (“[T]he key question is whether the Village’s zoning ordinance facially
differentiates between religious and nonreligious assemblies or institutions.”
(citation omitted)). For the reasons discussed above, Tartikov stated as-applied
claims as well, and the court erred in refusing to consider whether Tartikov’s
proposed use itself was treated on less than equal terms as libraries and museums.
This is especially true since the purpose of regulating “educational institutions” was
to target Orthodox/Hasidic Jewish schools. At no point, even to this day, has the
Village ever had an educational institution within its borders and therefore there have
been no such issues to address. TE639 ¶¶ 11-12, TE660 ¶¶ 94-95, TE661 ¶¶ 97-98,
A733 ¶¶ 11,14, A734 ¶¶ 18-20.
Affirming the district court’s decision would allow municipalities to place
more onerous constraints on religious assemblies and institutions simply by
grouping them together with another secular use, and then treating that class of uses
differently and worse than other nonreligious assembly and institutional uses. The
approach more faithful to the text of RLUIPA is to examine whether “a religious
25
assembly or institution” is treated worse than “a nonreligious assembly or
institution.” Reviewing Tartikov’s as-applied challenge permits the Court to review
whether its use is treated on less than equal terms.
The Village’s brief even supports such an approach in its discussion
concerning the Total Exclusions provision, where it argues that § 2000cc(b)(3)(A)
“says ‘totally excludes religious assemblies,’ not a religious assembly or some
religious assemblies.” VR at 67 (emphasis in original). Section 2000cc(b)(1),
however, does say “a religious assembly or institution,” so courts should review
whether a religious use is treated on less than equal terms. If the omission of the
word “a” is relevant with respect to the Total Exclusion provision, its inclusion in
the Equal Terms provision is also significant.
The Village makes a separate argument, that “[l]ibraries and museums are not
educational institutions. As they are not subject to the Challenged Laws they are not
valid comparators.” 10 VR at 64; see id. at 65 (“[a]t issue here are the Challenged
10
The burden is on the Village to demonstrate that the treatment of Tartikov’s use is not
unequal to libraries and museums, not on Tartikov to demonstrate that it is:
The burden is not on the church to show a similarly situated secular assembly, but
on the city to show that the treatment received by the church should not be deemed
unequal, where it appears to be unequal on the face of the ordinance.47
47
See 42 U.S.C. § 2000cc-2(b).
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011);
42 U.S.C. § 2000cc-2(b) (“If a plaintiff produces prima facie evidence to support a claim alleging
a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government
shall bear the burden of persuasion on any element of the claim, . . . .”).
26
Laws, laws that do not apply to libraries or museums.”). But that is exactly the point-
-that the nonreligious assembly and institutional land uses (libraries and museums)
are not subject to the same constraints that Tartikov’s proposed use is, and thus
Tartikov is treated “on less than equal terms” as those uses. See Third Church of
Christ, Scientist, 626 F.3d at 669 (“[d]etermining whether a municipality has treated
a religious entity ‘on less than equal terms’ requires a comparison between that
religious entity and a secular one.”). The Village’s argument should be rejected.
The Village also claims that “libraries and museums are not valid
comparators” because they are not “similar.” Id. at 64-65. Such a view has been
rejected by the courts, including this Court. “[N]o court has held that the secular
comparator’s use need be identical to the religious entity’s.” Third Church of Christ,
Scientist, 626 F.3d at 671; see also Lighthouse Inst. for Evangelism, Inc., v. Long
Branch, 510 F.3d 253, 264 (3d Cir. 2007) (secular use need not engage in precisely
“the same combination of uses” as the church to be a valid comparator); Church of
Our Savior v. Jacksonville Beach, 69 F. Supp. 3d 1299, 1323 (M.D. Fla. 2014)
(holding that school granted CUP was a similarly situated comparator despite
differences, as “no two situations are ever going to be exactly the same”).
The relevant question is not whether they are “similar” in some abstract sense,
or whether they are similar with respect to irrelevant aspects. As this Court has
27
recognized, another valid comparator use must be similarly situated with respect to
the reasons for the regulation at issue:
The differences in the mechanism for selecting an appropriate secular

comparator that these cases present need not concern us today. . . . [I]t
suffices for our present purposes that the district court concluded the
Church’s and the hotels’ catering activities were similarly situated with
regard to their legality under New York City law. And so they are.
Third Church of Christ, Scientist, 626 F.3d at 670. The justification used to regulate
the church in that case was that its catering establishment was not legal under the
city’s laws. Id. at 668. The Court then questioned whether catering establishments
in “hotels”--a much different land use than churches--were similarly situated with
respect to their legality, and the Court determined that “hotels’ catering was
allegedly prohibited . . . .” Id. at 671. Thus, the very different uses were similarly
situated for the regulatory purpose asserted.
In Third Church of Christ, Scientist, the Court has also described various
formulations of this standard used by other Circuits:
● Third Circuit: “[T]he proper analysis focuses on the ‘impact of the allowed
and forbidden [uses] . . . in light of the purpose of the regulation.’” Id. at
670 (quoting Lighthouse Inst., 510 F.3d 253, 265 (3d Cir. 2007));
● Seventh Circuit: “[S]hift[s] the focus slightly from the government’s
subjective purpose in enacting the zoning law to the law’s stated regulatory
criteria, which it deemed more objective.” Id. (citing River of Life
28
Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367, 371 (7th Cir.
2010) (en banc)); and
● Eleventh Circuit: “[T]he court should look for an organization ‘having
comparable community impact’ as the religious group.” Id. (quoting
Konikov v. Orange Cty., 410 F.3d 1317, 1327 (11th Cir. 2005)).
See also Centro, 651 F.3d at 1173 (“[t]he city violates the equal terms provision only
when a church is treated on a less than equal basis with a secular comparator,
similarly situated with respect to an accepted zoning criteria.”).
Under any of these formulations, Tartikov met this test, as the stated
regulatory purposes or criteria of the Targeted Laws was reducing the impact of
nonresidential uses on adjacent residential neighborhoods and properties and to
protect the environment, which were equally implicated by libraries and museums.
See Brief for Plaintiffs-Appellees-Cross-Appellants, Docket No. 151 (“TB”), at 83.
The Village in its brief contests neither (a) that Tartikov’s use is treated on less than
equal terms as libraries and museums by being able to build a structure only half the
size, see TB at 81-82, TE656, nor (b) that libraries and museums would impact the
stated regulatory purpose as much as, or greater than, Tartikov’s proposed use. See
TB at 84. Therefore, the district court’s decision against Tartikov on its Equal Terms
claim should be reversed.
29
III. THE VILLAGE FAILED TO REBUT TARTIKOV’S ARGUMENT

THAT IT PROVED A VIOLATION OF RLUIPA’S TOTAL
EXCLUSION PROVISION.
The Village argues that all religious assemblies of all types must be prohibited
from a jurisdiction in order to demonstrate a violation of RLUIPA’s “Total
Exclusion” provision, 42 U.S.C. § 2000cc(b)(3)(A). VR at 66-69. As discussed in
its principal brief and below, this interpretation is not faithful to the text of RLUIPA,
to RLUIPA’s rules of construction and its legislative history, and is contrary to other
courts’ decisions regarding this provision. TB at 87-92.
Tartikov does not argue, as the Village claims, that all it needs to show is that
it was excluded from the Village. VR at 67. Rather, it argues that the Village
excluded a type of religious assembly--any religious assembly that falls within the
Village’s proscription of educational institutions with student family housing as well
as non-accredited educational institutions--and that any such religious assembly is
prohibited throughout the Village’s jurisdiction. This was not an accident. With
respect to the student family housing prohibition, the Village specifically targeted
that type of religious assembly, having been aware of, and fought against, such
religious assemblies in the neighboring Town of Ramapo specifically because they
are religious and meant to accommodate a religious community, as the Village called
it, “a burgeoning Hassidic community, . . . .” TE887 ¶¶ 18, 27, 57-61, 139, 141,
215; TE853 ¶ 31. The Village even filed suit against the Town of Ramapo
30
specifically because its Adult Student Housing Law permitted such religious
assemblies because they accommodated “those engaged in full time study consistent
with recognized religious practice or belief.” TE891; TE658.
Pomona fought against this type of assembly because of, not merely in spite
of, the fact that it was a religious assembly, alleging in its complaint against the
Town that
Chofetz Chaim, in its written comment, pointed out “one glaring

deficiency in the proposed plan that needs to be addressed . . . [is that]
[t]he community has many young men who marry and continue their
pursuit of a rabbinical or secular degree for several years after marriage.
These young students are in need of dormitory housing that would
provide all the needed space for their families to thrive while they
pursue their educational goals."
TE897-898. It alleged that “[t]he Local Law was proposed specifically in response
to the request from a religious group for multi-family housing,” and claimed that
“the Local Law is drawn to secure for one religious community a unique and
significant zoning benefit . . . .” TE-912, TE922.
Fearing this type of religious assembly (and the Orthodox/Hasidic Jews that
would populate it), a few months later the Village enacted its own prohibition against
the same to ensure that Pomona does not fall victim to the burgeoning Hasidic
community. TE1488-1491. It is not just Tartikov that it intended to exclude; the
31
Village attempted to exclude all such religious assemblies from its borders. 11 In fact,
the Village elsewhere argues that “Local Law 5 of 2004 . . . was drafted, and adopted
at least two months before the Village learned Tartikov had purchased the Property
— and three years before the Village learned what Tartikov intended to build.” VR
at 15.
RLUIPA prohibits governments from imposing a land use regulation that
“totally excludes religious assemblies from a jurisdiction[.]” 42 U.S.C. §
2000cc(b)(3)(A). Pomona has “totally excluded religious assemblies”--namely
schools with adult student housing,12 which it knows are required by the
Orthodox/Hasidic Jewish community--from its jurisdiction.
The Village argues in response that the provision is not violated because there
are three churches in the Village, VR at 66, and therefore not all types of religious
assemblies are prohibited. That is not how the statute is written, as the word “all”
does not appear in its text. And if there were any ambiguity in the language,
reference to both its rule of construction that it “shall be construed in favor of a broad
protection of religious exercise, to the maximum extent permitted by the terms of
11
The Village’s claim that the Targeted Laws concern “schools” and “not religious
institutions[,]” VR at 67, blinks reality. There is no doubt at this point what type of religious
assembly the Village was targeting by prohibiting student family housing at educational
institutions.
12
As discussed in Tartikov’s principal brief, non-accredited educational institutions and
even all educational institutions are also prohibited in the Village by virtue of the accreditation
requirement and the Wetlands Protection Law, respectively. TB at 87.
32
this chapter and the Constitution,” 42 U.S.C. § 2000cc-3(g), and its legislative
history would be appropriate. Although Tartikov addressed the ample support of its
interpretation in RLUIPA’s legislative history, the Village has failed to address it,
instead describing such review as “fruitless” and “unnecessary.” VR at 67 & n.50.
The cases discussed by both parties support an interpretation that not all types
of religious assemblies must be banned in order for the Total Exclusion provision to
be violated. The Village references the Seventh Circuit’s Vision Church decision by
noting that the Court held that because the village “permitt[ed] churches in all
residential districts as a special use,” the provision was not violated. VR at 67-68
(quoting Vision Church v. Vill. of Long Grove, 468 F.3d 975, 989 (7th Cir. 2006),
cert. denied, 552 U.S. 940 (2007)). However, the plaintiff there was also a church,
and therefore whether or not “churches” (as opposed to other religious uses such as
schools, cemeteries or monasteries) were permitted elsewhere in the jurisdiction was
clearly relevant.
Although the same court referenced a “church or school” in dicta in its later
decision in Eagle Cove Camp & Conf. Ctr., Inc. v. Woodboro, 734 F.3d 673, 680
(7th Cir. 2013), abrogation recognized by Schlemm v. Wall, 784 F.3d 362 (7th Cir.
2015), its analysis was focused primarily on whether the use at issue, a religious
camp, was excluded from the jurisdiction:
Eagle Cove’s total exclusion argument is predicated, and in fact

depends, on the assumption that Woodboro has jurisdiction to
33
implement land use regulations on the subject property. This stems

from the fact that year-round recreational camps are permitted
throughout the County (rendering Eagle Cove’s total exclusion claim
obsolete), but not allowed within Woodboro's borders.
....
. . . . There is ample evidence in the record to suggest that

operating a year-round Bible camp would be possible in many parts of
Oneida County. See supra Part I.A. In Vision Church, we held that the
total exclusion provision of RLUIPA prohibits only “the complete and
total exclusion of activity or expression protected by the First
Amendment.” 468 F.3d at 989. It is undisputed that Eagle Cove could
construct a year-round Bible camp on thirty-six percent of the land in
Oneida County.
Id. at 679-80 (emphasis added). The Seventh Circuit’s decision suggests that if
religious camps would have been excluded entirely from Oneida County, the zoning
law would have violated the Total Exclusion provision.13
The Village fails to distinguish Calvary Chapel, ignoring the decision’s
explicit reference to “zoning classifications that allow churches . . . .” 2017 WL
6883866, at *18 (emphasis added).
Int'l Church of Foursquare Gospel v. City of San Leandro, 632 F. Supp. 2d
925 (N.D. Cal. 2008), rev’d, 634 F.3d 1037 (9th Cir. 2011), amended and
superseded on denial of reh’g en banc, 673 F.3d 1059 (9th Cir. 2011), also analyzed
13
That is how at least one other court understood the decision. See Calvary Chapel Bible
Fellowship v. Cty. of Riverside, No. CV16-259 PSG (DTBX), 2017 WL 6883866, at *18 (C.D.
Cal. Aug. 18, 2017) (citing the Eagle Cove decision as “finding no violation of the total exclusion
provision where plaintiff ‘could construct a year-round Bible camp on thirty-six percent of the
land in Oneida County.’”), reconsideration denied, 2017 WL 6820024 (C.D. Cal. Nov. 9, 2017).
34
where the city “allows churches” because the plaintiff itself was a church. Id. at
947-48. The same holds true for Petra Presbyterian Church v. Northbrook, 409 F.
Supp. 2d 1001, 1007 (N.D. Ill. 2006), aff’d, 489 F.3d 846 (7th Cir. 2007). Both of
those decisions suggest that courts should review whether the type of religious
assembly at issue is excluded, and not all religious assemblies.
The Village ignores other decisions that that do not involve “churches” at all,
and review whether the specific religious land use at issue is permitted elsewhere
within the jurisdiction. In Affordable Recovery Hous. v. City of Blue Island, Civ.
No. 12-4241, 2016 WL 5171765 (N.D. Ill. Sept. 21, 2016), the court held:
Based on these facts, the Court concludes that Blue Island’s zoning
code does not completely or unreasonably exclude recovery homes
from its districts. Defendants are entitled to summary judgment on this
claim as well.
2016 WL 5171765, at *16 (emphasis added). Similarly, in House Where Jesus
Shines, Inc. v. City of Bellmead, No. W-08-CV-117, 2009 WL 10669584, at *5
(W.D. Tex. Sept. 11, 2009) (halfway houses), the court denied summary judgment
to the defendant because there were issues of material fact as to whether the
plaintiff’s use was totally excluded from the jurisdiction:
Under the first prong of RLUIPA’s “exclusions and limits” clause,

Bellmead would be prohibited from imposing or implementing a land
use regulation that completely excludes religious assemblies from
Defendant’s jurisdiction. 42 U.S.C. § 2000cc (b)(3)(A). HWJS alleges
that this is exactly the case, and that the enacted ordinances wholly
prohibit HWJS from locating within Bellmead’s city limits because
there is no property available that can meet the requirements set forth
35
in the Ordinances. Bellmead, on the other hand, presents evidence to

counter this allegation. Supported by the affidavit of Johnny Tabor,
Defendant contends that there are alternative properties within the city
limits which would both be appropriate for Plaintiff’s institution and
comply with the requirements set forth in the enacted Ordinances. At a
minimum, the dispute over whether properties exist within Defendant’s
jurisdiction—thereby preventing Plaintiff from being “totally
excluded” Defendant’s jurisdiction—represents a genuine issue of
material fact.
2009 WL 10669584, at *5 (emphases added); see also Lighthouse Inst. for
Evangelism Inc. v. City of Long Branch, 100 F. App’x 70, 77 (3d Cir. 2004) (“[i]t is
undisputed that the Mission was not totally excluded from the jurisdiction because
it could have operated in other districts in the City by right.” (emphasis added)).
While these decisions are certainly not controlling here, they demonstrate that--at
the very least--there may be some ambiguity in the text of the Total Exclusion
provision, and therefore reference to its legislative history is appropriate.
Finally, the Village’s suggestion that interpreting the Total Exclusion
provision in a manner that would be faithful to its text, its legislative history, and
other cases applying it would “turn[] the principles of land use on their head and
eviscerate[] a municipality’s zoning powers,” VR at 69 (footnote omitted), should
be rejected. Counsel is unaware of a single successful claim brought under this
provision in the eighteen years since RLUIPA was enacted. Certainly, allowing
residents of all faiths to worship, pray and study as they believe is more faithful to
RLUIPA’s requirement that it “be construed in favor of a broad protection of
36
religious exercise,” 42 U.S.C. § 2000cc-3(g), than the Village’s restrictive
interpretation.
For the foregoing reasons, the district court’s decision against Tartikov on its
Total Exclusion claim should be reversed.
CONCLUSION
For the foregoing reasons, Tartikov respectfully requests that this Court grant
its conditional cross appeal, and reverse the lower court’s judgment as to its “as-
applied” claims and as to Tartikov’s Equal Terms and Total Exclusions Claims.
Dated: Nanuet, New York

November 20, 2018 __s/Joseph A. Churgin____________________
SAVAD CHURGIN, LLP
Joseph A. Churgin
55 Old Turnpike Road, Suite 209
Nanuet, New York 10954
(845) 624-3820
37
CERTIFICATE OF COMPLIANCE
This brief is submitted on behalf of Plaintiffs-Appellees-Cross-Appellants.
It is subject to the enlarged word count (9,500 words) authorized by the Court’s
Order dated June 21, 2018. This brief complies with the word count limitations of
Fed. R. App. P. 32(a)(7)(B)(ii), as modified, because it contains no more than
9,476 words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
The brief complies with the requirements of Fed. R. App. P. 32(a)(5) and (6)
because it was prepared in a proportionally spaced 14-point Times New Roman
typeface font using Microsoft Word.
Dated: Nanuet, New York

November 20, 2018 __s/Joseph A. Churgin____________________
SAVAD CHURGIN, LLP
Joseph A. Churgin
55 Old Turnpike Road, Suite 209
Nanuet, New York 10954
(845) 624-3820

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18-0869-cv L , 18-1062-cv XAP

Case 18-869, Document 166, 11/20/2018, 2438559, Page1 of 45

CONGREGATION RABBINICAL COLLEGE OF TARTIKOV, INC, RABBI

REPLY BRIEF FOR PLAINTIFFS-APPELLEES-

SAVAD CHURGIN JOHN G. STEPANOVICH

ROMAN STORZER, ESQ.

RABBI GERGELY NEUMAN, RABBI KOLEL BELZ, OF MONSEY, RABBI

TABLE OF AUTHORITIES .................................................................................... ii

Lighthouse Inst. for Evangelism Inc. v. City of Long Branch,

Unity Ventures v. Lake Cty.,

Statutes & Other Authorities:

REPLY BRIEF FOR PLAINTIFFS-APPELLEES-CROSS-

existence of any kind of religious establishment or use in a jurisdiction proves per

se the failure of a claim of Total Exclusion.

While the Village appears to agree that Tartikov’s “as-applied” challenges to

“area variance.” However, as described below, neither of those options would

required by Williamson Cty. Reg'l Planning Comm’n v. Hamilton Bank of Johnson

excluded from the Village’s jurisdiction in order to find a violation of RLUIPA’s

I. THE VILLAGE HAS FAILED TO REBUT TARTIKOV’S

In its response to Tartikov’s cross-appeal, the Village appears to concede the

uncontroversial point that an as-applied challenge to a land use regulation is ripe if

no meaningful application process is available to a landowner. See Response and

Reply Brief for Defendants-Appellants-Cross-Appellees, Docket No. 156 (“VR”) at

The Village, however, argues that “[a]n as-applied challenge without an

application” is “an oxymoron; . . . .” VR at 54. This misunderstands the operative

application one is seeking an administrative mechanism for a permit, variance or

applied” if it challenges the application of a law to a particular claimant to determine

if their rights have been deprived:

An “as-applied challenge,” . . . requires an analysis of the facts of a

circumstances of [a] particular case.’” (quoting United States v. Christian Echoes

The two concepts are distinct.

While it is true that the courts have developed--beginning in the Takings

requiring a “meaningful application” to be made before an as-applied claim is

cannot foreclose an “as-applied” challenge, as the district court erroneously held.

expansion2 of ripeness limitations in the land use context.

As described below, the Plaintiffs’ Second Amended Complaint contained

prohibited outright Tartikov’s protected activity. The Village’s argument that a

the very laws it is challenging (the so-called “text amendment”) is absurd. As

regulations themselves repealed. Such an interpretation is not supported by any

1. Tartikov’s Second Amended Complaint contained sufficient

District Court in its Decision after trial.” VR at 61 (emphasis in original). However,

The Village’s Zoning Code forbids the Rabbinical College’s use

(A67) (emphasis in original). Further, Tartikov alleged:

93. The Village Code does not permit an unaccredited religious

94. The Village Code does not permit, as a “matter of right” or by

222. Defendants lack any authority to grant a special use permit,

(A85-87, A111-112.) Although the district court dismissed Tartikov’s as-applied

challenges to the Targeted Laws on a motion to dismiss, it is significant that each of

these relevant allegations was proven at trial, demonstrating conclusively the

plausibility of such claims. Regardless, the Village ignores the allegations of

Tartikov’s Second Amended Complaint in its opposition.

2. No “zone change” is available to Tartikov.

Although Tartikov’s Second Amended Complaint contained the very specific

allegation that it “has no administrative means of using its property legally as a

something called a “zone change[,]” VR at 56-58. However, there was no such

procedure available to Tartikov. See generally TE776-843 (Village of Pomona

its laws through a “text amendment.”4 (A775 n.14, A1303-1304.)

The Village confirmed this at trial:

And my question, ma’am, is where in the zoning code does it talk

A. Yes. The applicant would propose what it is he wants to do, a

Pomona also previously admitted this in prior proceedings:

going to accomplish anything. Apply for the zone

inaccurate and misleading.

the Village of Chester’s zoning districts to its property . . . .” Id. at 18-19