No. 96-1397

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

VILLAGE OF AIRMONT, PETITIONER

v.

YITZCHOK LEBLANC-STERNBERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION
______________

WALTER DELLINGER
Acting Solicitor General

ISABELLE KATZ PINZLER
Acting Assistant Attorney
 General

JESSICA DUNSAY SILVER
MARIE K. MC ELDERLY
Attorneys

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

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     QUESTION PRESENTED

Whether the court of appeals correctly upheld the
validity of the terms of the injunction entered by the
district court.

(I)

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TABLE OF CONTENTS

Opinions below . . . . 1

Jurisdiction . . . . 2

Statement . . . . 2

Argument . . . . 11

Conclusion  . . . . 19

Appendix A . . . . 1a

Appendix B . . . . 11a

    TABLE OF AUTHORITIES

Cases:

Braunfeld v. Brown, 366 U.S. 599 (1961)  . . . . 16 
Buchanan  v. Warley,  245 U.S. 60 (1917)  . . . . 13
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993)  . . . . 15-16
Elrod  v. Burns, 427 U.S. 347 (1976)  . . . .15 
Employment Div.j Dep`t of Human Resources v.
Smith, 494 U.S. 872 (1990)  . . . . 15
Farmer v. Brennan, 511 U.S. 825 (1994)  . . . .14 
First Assembly of God of Naples, Florida, Inc. v.
Collier County:
  20 F.3d 419, modified on denial of rehearing,
   27 F.3d 526 (llth Cir. 1994), cert. denied,
   513 U.S. 1080 (1995)  . . . . 17, 18
  27 F.3d 526 (11th Cir. 1994), cert. denied,
   513 U.S. 1080 (1995)  . . . . 18
Grosz v. City of Miami Beach, 721 F.2d 729
(llth Cir. 1983), cert. denied, 469 U.S. 827
(1984)  . . . . 15, 17
Huntington Branch, NAACP v. Town of
Huntington, 844 F.2d 926 (2d Cir.), aff'd,
488 U.S. 15 (1988)  . . . . 13

(III)

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Iv

Cases-Continued:               Page

Islamic Center of Mississippi, Inc. v. City of
Starkville, 840 F.2d 293 (5th Cir 1988)  . . . .  18
Keego Harbor Co. v. City of Keego Harbor,
657 F.2d 94 (6th Cir.  1981)  . . . . 16-17
Lake wood, Ohio Congregation of Jehovah's
Witnesses, Inc. v. City of Lakewood, 699
F.2d 303 (6th Cir.), cert. denied, 464 U.S.
815 (1983) . . . . 15, 16, 17
LeBlanc-Sternberg v. Fletcher:
763 F. Supp. 1246 (S.D.N.Y. 1991)  . . . . 4-5
781 F. Supp. 261 (S.D.N.Y. 1991)  . . . . 6 
846 F. Supp. 294 (S.D.N.Y. 1994), aff'd in part,
  rev'd in part, dismissed in part, 67 F.3d 412
  (2d Cir. 1995)  . . . . 7, 8
67 F.3d 412 (2d Cir. 1995)  . . . . passim
Louisiana v. United States, 380 U.S. 145 (1965) . . . . 12
Milliken v. Bradley, 433 U.S. 267 (1977)  . . . . 11
Pennsylvania v. West Virginia, 262 U.S. 553
(1923)  . . . . 14
Sherbert  v. Verner, 374 U.S. 398 (1963)  . . . . 16
Swift & Co. v. United States, 276 U.S. 311
(1928)  . . . . 14
Town of Huntington v. Huntington Branch,
NAACP, 488 U.S. 15 (1988)  . . . . 13 
United States v. City of Parma, 661 F.2d 562
(6th Cir. 1981), cert. denied, 456 U.S. 926 (1982) . . 13
United States v. Village of Airmont, 839 F. Supp.
1054 (S.D.N.Y. 1993), rev'd, 67 F.3d 412 (2d Cir.
1995)  . . . . 6, 7
Village of Airmont v. LeBlanc-Sternberg, cert.
denied, 116 S. Ct. 2546 (1996)  . . . .9 
Wisconsin  v. Yoder, 406 U.S. 205 (1972)  . . . . 16 

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v

Constitution, statutes and rule:          Page

U.S. Const.:
Amend. I  . . . . 4, 6, 8, 9, 15, 18
Amend. XIV, 5  . . . .16
Fair Housing Act, 42 U.S.C. 3601 et seq . . . .   4
42 U.S.C. 3602(i)(2)  . . . .14
Religious Freedom Restoration Act of 1993,
42 U.S.C. 2000bb et seq . . . .16
42 U.S.C. 1983  . . . .   9
42 U.S.C. 1985(3)  . . . .   9
Fed. R. Civ. P. 50(b)  . . . .7

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OCTOBER TERM, 1996

    No. 96-1397

VILLAGE OF AIRMONT, PETITIONER

       v.

YITZCHOK LEBLANC-STERNBERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals affirming the
district court's entry of injunctive relief (App., infra,
la-10a) is unpublished, but the decision is noted at 104
F.3d 355 (Table). 1.  The earlier opinion of the court of
appeals reversing the district court's original dis-
missal of the case and denial of injunctive relief is
reported at 67 F.3d 412. The opinion of the district
court on remand (App., infra, 11a-29a) is reported at

___________________(footnotes)

1 Because the court of appeals' opinion as reproduced in
the appendix to the petition (Pet. App. la-11a) contains typo-
graphical errors that omit several lines of the opinion, that
opinion is included in the appendix to this brief in opposition.

(1)

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2

922 F. Supp. 959, 2.  and its order entering injunctive
relief on remand (Pet. App. 12a-16a) is reported at 925
F. Supp. 160. The district court's supplemental order
(Pet. App. 17a-18a) is unreported.

       JURISDICTION

The judgment of the court of appeals was entered
on December 6, 1996. The petition for a writ of certio-
rari was filed on March 4, 1997. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

        STATEMENT

1. a. This litigation arose out of the incorporation
of the Village of Airmont, New York, in 1991. Prior
to incorporation, the Airmont community was an un-
incorporated area of the Town of Ramapo, New York.
During the 1980s, the number of Orthodox Jews
(including Hasidic Jews, a subgroup, of Orthodox
Jewry) residing in Ramapo increased dramatically.
LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 417 (2d
Cir. 1995). In the mid-1980s, Ramapo accommodated
the needs of Orthodox Jews for a place of worship near
their homes by relying on a provision of its zoning
code regarding "home professional office[s]," which
permitted members of certain "learned professions,"
including clergy, to operate offices within their
homes, subject to certain restrictions. Id. at 418. 3

___________________(footnotes)

2 Because the appendix to the petition does not include the
opinion of the district court, that opinion is included in the
appendix to this brief in opposition.
3 Orthodox Jews cannot travel substantial distances to a
place of worship for services or prayer because the tenets
of Orthodox Judaism do  not  permit  adherents  to travel by auto-
mobile or other mechanical means of transportation on the
Sabbath or on certain religious holidays. LeBlanc-Sternberg, 67
F.3d at  417. Strict  observance  by  Orthodox Jews requires daily

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3

Ramapo interpreted the zoning code provision to per-
mit rabbis to conduct worship services in their
homes, subject to limitations on the number of per-
sons who could gather at any given time. Ibid.
In the Airmont area of Ramapo, a group of residents
formed the Airmont Civic Association (ACA) and
began efforts to incorporate Airmont as a village
"because some of its members felt that the Town
of Ramapo was adopting zoning measures unduly
favorable to Hasidic Jews." App., infra, 13a. As an
incorporated village, separate from Ramapo, Airmont
would be able to have its own zoning code. LeBlanc-
Sternberg, 67 F.3d at 418. The ACA sought incor-
poration as a village with the expressed intent of
keeping Orthodox and Hasidic Jews out of the Air-
mont community. Id. at 418-419. A referendum on
incorporation of Airmont was held on January 30,
1989, and the vote was in favor of incorporation by a
margin of 3 to 1. Id. at 419.  4
ACA members went before the Ramapo Plan-
ning Board to oppose respondent Rabbi LeBlanc-
Sternberg's application to conduct worship services
in his home. In the course of doing so, they expressed
anti-Orthodox sentiments and stated that Orthodox

___________________(footnotes)

worship, and certain prayers may be said only if a "minyan,"
i.e., a group of ten males at or above the age of thirteen, is
present. Ibid. As a consequence, it is important for Orthodox
Jews to live within walking distance of a place where they can
congregate for worship. Ibid.
4 Formal incorporation was delayed, however, by litigation
in state court challenging the manner in which the referendum
was conducted. Meanwhile, the ACA continued to oppose ac-
tions by the Town of Ramapo to approve zoning variances that
would allow Orthodox Jewish houses of worship.  LeBlanc-
Sternberg, 67 F.3d at 419.

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4

Jews should not have moved into the area, since they
knew when they did so that there were no houses of
worship. LeBlanc-Sternberg, 67 F.3d at 420. Ramapo
initially denied the application, then twice approved it,
but the ACA financed two successful state court
challenges to the approvals. Ibid. Ramapo approved
the application for a third time, including certain
restrictions on the number of congregants and re-
stricting the home worship to Jewish holidays and the
Sabbath. Ibid. By then, the Village of Airmont was
incorporated, and it decided not to pursue a third state
court challenge. A village trustee and former ACA
board member stated that the Village did not need to
pursue another state court challenge since "there are
other ways  we can harass them." Ibid.
b. The Village of Airmont was formally incor-
porated on April 10, 1991.  LeBlanc-Sternberg, 67 F.3d
at 419. On April 12, 1991, the private respondents, a
group of Orthodox Jewish residents of the Village
of Airmont including Rabbi LeBlanc-Sternberg, filed
a complaint in the United States District Court
for the Southern District of New York against
the Village, the ACA, Ramapo and several leaders of
the incorporation movement, claiming that the in-
corporation of the Village had been undertaken for
the purpose of excluding Orthodox Jews, in violation
of various federal laws, including the Fair Housing
Act (FHA), 42 U.S.C. 3601 et seq., and the First
Amendment. They sought damages and injunctive
relief, and moved to enjoin preliminarily the election
of the Village mayor and board of trustees that was
scheduled for May 16, 1991. LeBlanc-Sternberg, 67
F.3d at 419. The district court denied an injunction
on the ground that respondents had failed to establish
irreparable  harm. LeBlanc-Sternberg v. Fletcher, 763

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5

F. Supp. 1246, 1250-1252 (S.D.N.Y. 1991). Shortly
thereafter, the ACA's slate of candidates was elected
and took office as the Village Mayor and the members
of its Board of Trustees. LeBlanc-Sternberg, 67 F.3d
at 419.
c. On December 17, 1991, the United States filed
suit against the ACA, the Village, and the Village
trustees in their official capacities, alleging that the
incorporation of Airmont had been accomplished "for
the purpose of excluding Orthodox Jews" from the
Village by, inter alia, imposing burdensome zoning
and other restrictions upon Orthodox Jewish places of
worship in the Village, in violation of the FHA. The
United States sought declaratory and injunctive
relief.  LeBlanc-Sternberg, 67 F.3d at 419.
In January, 1993, the Village of Airmont  adopted its
own zoning code.  LeBlanc-Sternberg, 67  F.3d at 420.
The code contained several modifications of the "home
professional office" provision of the Ramapo zoning
code and stated the Village's intention that the pro-
vision "not generate activities that come into a
residential area so as to detract from the residential
character of the area." Ibid. The Village appointed a
board of appeals and a planning board to interpret and
apply the code and appointed, as one of the board
members, an ACA member who had stated that most
persons were opposed to home houses of worship and
who had participated in the surveillance of Orthodox
Jewish homes at prayer time. Id. at 421. The mayor
and three of the four trustees who adopted the zoning
code all "testified at trial that they were opposed
to the Ramapo-type interpretation of the [home pro-
fessional office] provision to allow worship services in
the homes of clergy." Ibid. Respondents contended
that, in light of the circumstances surrounding the

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6

adoption of the zoning provision, the interpretation it
would be given was a foregone conclusion. See  ibid.
d. The two lawsuits were consolidated and pro-
ceeded to trial. 5.  The damages claims by the private
respondents were tried to a jury; the government's
suit was tried to the court. LeBlanc-Sternberg, 67
F.3d at 419. 6.  On December 13, 1993, after seven
weeks of trial and a week of deliberations, the jury
returned a verdict against the Village, finding that
it had violated private respondents' rights under
the FHA and had conspired to violate their rights
under the First Amendment. Id. at 421-422. The
jury awarded no damages. Id. at 422. In addition, the
jury returned a verdict in favor of the individual
defendants.  Ibid.
Two days after the jury verdict, the district court
dismissed the government's suit. LeBlanc-Sternberg,
67 F.3d at 422; United States v. Village of Airmont,
839 F. Supp. 1054 (S.D.N.Y. 1993). The court found
that there was no basis for injunctive relief because
the Village of Airmont had not taken any actions that
violated the rights of Orthodox Jews in that, since
incorporation, it only had enacted the zoning code
and had not interpreted it. The court stated that,
although the differences between the Airmont code
and the Ramapo code "arguably could be taken as

___________________(footnotes)

5 On December 24, 1991, the district court had denied a
motion to dismiss the private suit, rejecting, inter alia, the
challenge to the private respondents' standing, to the justi-
ciability of their claims, and to their statement of a cause of
action.  LeBlanc-Sternberg V. Fletcher, 781 F. Supp. 261
(S.D.N.Y. 1991).
6 Claims against some original defendants were settled or
dismissed prior to trial, and a default judgment was entered
against the ACA. LeBlanc-Sternberg, 67 F.3d at 421.

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7

a signal for a different interpretation," the Village
"might not" interpret its code to prevent the use of
home houses of worship by Orthodox and Hasidic
rabbis for worship services. LeBlanc-Sternberg, 67
F.3d at 422; Airmont, 839 F. Supp. at 1063-1064.
The court dismissed the case notwithstanding its
acknowledgment  that, "[v]iewing the evidence in the
light most favorable to the Government, we can
foresee that the [Airmont] Planning Board and the
Zoning Board of Appeals (to the extent the matter
might be submitted to it) will not adopt the Ramapo
interpretation of the home professional office excep-
tion." Airmont, 839 F. Supp. at 1064. The court also
recognized that the absence of actions against the
Orthodox and Hasidic Jews in Airmont by the Village
or the trustees since the incorporation of the Village
could have been caused by the pendency of the instant
litigation. Ibid. The court concluded that, "if there
is any action taken in the future which violates
their rights, the United States Government and other
plaintiffs will not be timorous about suing. Conse-
quently, we see no basis or need for injunctive relief."
Ibid. The court believed that injunctive relief, as
requested by the United States, to prohibit peti-
tioners from denying persons their constitutional
rights was "unnecessary since it would be enjoining
acts which are already illegal."  Id. at 1065.
The district court also denied private respondents
any injunctive relief. LeBlanc-Sternberg, 67 F.3d at
423. In addition, three months after trial, on March
16, 1994, the district court granted petitioner's mo-
tion for judgment as a matter of law under Federal
Rule of Civil Procedure 50(b). LeBlanc-Sternberg  v.
Fletcher, 846 F. Supp. 294 (S.D.N.Y. 1994). The court
found the jury verdict to be inconsistent because the

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8

jury had found that the Village of Airmont had
violated the FHA and conspired to violate the con-
stitutional rights of certain individuals to engage
in the free exercise of religion and speech, but had
not awarded any damages, Id. at 295. The court
incorporated in its findings the facts it had found and
the reasoning set forth in its decision dismissing the
government's suit. Ibid. The court also rejected
the argument that petitioner's actions had a chilling
effect on the respondents' First Amendment rights
and concluded that, because the private respondents
already had their zoning permits, the worst situation
they would face, if the Airmont code were to be
interpreted differently from the Ramapo code, would
be as a non-conforming use.  Id.  at 296.
2. The court of appeals reversed the dismissal of
the claims against petitioner, the Village. LeBlanc-
Sternberg  v. Fletcher, 67 F.3d 412 (2d Cir. 1995). 7. The
court remanded for an award of nominal damages
and injunctive relief in the private suit and for de-
claratory and injunctive relief in the United States'
action. Id. at 435,
The court held that "the evidence was sufficient
to establish that Airmont violated the private [re-
spondents'] rights under the Fair Housing Act and
the First Amendment; that the district court was
not entitled to set aside the jury's verdict against the
Village on those claims on the basis of the court's
own findings in the government's action; that in light
of the established violation of their rights, the private

___________________(footnotes)

7 The court affirmed the judgment dismissing the private
respondents' suit against the individual defendants and dis-
missed the cross-appeal of two of the individual defendants as
moot. LeBlanc-Sternberg, 67 F.3d at 432-433, 435.

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9

[respondents] were entitled to an award of nominal
damages; that the jury's verdict against the Village
constituted collateral estoppel that required the
court to find that the government had established a
violation by the Village; and that in ruling that
injunctive relief was not appropriate, the court failed
to apply pertinent [Fair Housing Act] principles."
LeBlanc-Sternberg, 67 F.3d at 424. The court found
that, when viewed in the light most favorable to the
private respondents, "there was ample support for
the jury's implicit finding that Airmont's zoning code
would be interpreted to restrict the use of home
synagogues, that the motivation behind the enact-
ment was discriminatory animus toward Orthodox
and Hasidic Jews, and that Airmont pursued this goal
jointly with ACA." Id. at 431. Accordingly, private
respondents had established the Village of Airmont's
liability on their claims under the FHA, the First
Amendment, and 42 U.S.C. 1983 and 1985(3), entitling
them to nominal damages. 67 F.3d at 429-431. The
court ordered the district court to consider whether
injunctive relief in favor of private respondents was
appropriate in light of the jury's verdict. Id. at 432.
The court of appeals held that the United States
was entitled to a declaratory judgment on its FHA
claim. LeBlanc-Sternberg, 67 F.3d at 433-435. In
addition, the court held that the United States was
entitled to an injunction "prohibiting the application
of the Airmont zoning code in the discriminatory
manner found to be predictable from the evidence in
this record." Id. at 434.
3. On June 24, 1996, the Court denied a petition for
a writ of certiorari to review the court of appeals'
decision. Village of Airmont v. LeBlanc-Sternberg,
116 S. Ct. 2546.

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10   

4. On remand, the district court entered injunctive
relief against the Village in both cases, awarded the
private respondents nominal damages, and entered a
declaratory judgment. App., infra, 20a-25a, 27a-28a;
Pet. App. 12a. The court also entered an injunction
forbidding "the Village and its officers, employees,
agents, successors, and assigns from promoting reli-
gious discrimination; from denying equal opportunity
to religion by use, interpretation, or enforcement
of the zoning code in such a manner that it prevents
home worship; from discriminating because of reli-
gion or interfering with the free exercise of religion
in connection with housing and from taking any
action that limits the availability of housing on the
basis of religion." App.,  infra, 23a-24a Pet. App. 12a-
13a. Specifically, the court directed that the Airmont
zoning code be revised "so that it will not be con-
strued to prevent home worship, or to prevent persons
from walking to and from religious services at such
places of worship, or to prevent home worship ser-
vices on any day in all residential zones." App., infra,
24a. The court ordered certain other conforming
revisions to the code. Ibid.; Pet. App. 13a-15a. In
addition, the court ordered that, for a period of five
years, the Village must maintain and make available
to the United States all applications for residential
houses of worship and records indicating the dis-
position of each such application; it must provide
opposing counsel with advance notice of all Village
planning board and zoning board meetings in which
any application relating to religious worship will
be considered; and it must notify government counsel
of any proposed changes in the Village's zoning

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11

ordinances relating to religious worship. Pet. App.
15a-18a. 8
5. The court of appeals affirmed. App., infra, la-
10a. It ruled that the district court's exercise of
injunctive relief passed muster under Milliken v.
Bradley, 433 U.S. 267, 280-282 (1977), in that the
remedy (1) was commensurate to the Village's "egre-
gious constitutional violation" (i.e., "passing a zoning
code based on religious animus") and to the predict-
ability of further constitutional violations by future
discriminatory enforcement of the code, because the
remedy "cured the past constitutional violation and
obviated the threat of future constitutional viola-
tions" (App., infra, 7a-8a); (2) was remedial in nature
because the injunction "ensured that rights to free
exercise of religion were unencumbered, and the
constant threat of limitation of those rights was
lifted" (id. at 9a); and (3) was not overly intrusive on
local authority because "there was no indication that
the Village was going to make the changes necessary
to guarantee that no constitutional violations oc-
curred in the future" (an occurrence that the court of
appeals had ruled was "likely") and the injunction
"was necessary to ensure that the Village complied
with the mandate of the FHA"  (id. at 10a).

       ARGUMENT

1. Petitioner contends (Pet. 5-8) that the court of
appeals disregarded constitutional precedent that the
federal government is a government of limited powers
and that the court erred by permitting intervention
                                                
___________________(footnotes)

8 The district court denied the request by private respon-
dents that it dissolve the Village. App., infra, 25a-27a.

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12

into the uniquely local issue of zoning, a matter
which is better left to local governments.
The court of appeals correctly upheld the injunctive
relief ordered by the district court. As the court of
appeals noted, a district court has "not merely the
power but the duty to render a decree which will so
far as possible eliminate the discriminatory effects
of the past as well as bar like discrimination in
the future." App., infra, 7a (quoting Louisiana v.
United States, 380 U.S. 145, 154 (1965)). In the
instant case, the jury had implicitly found that the
Airmont zoning code was motivated by discriminatory
animus against Orthodox and Hasidic Jews and that it
would be interpreted to restrict the use of home
synagogues, "thereby deterring Orthodox Jews from
purchasing homes in many Airmont neighborhoods."
LeBlanc-Sternbergy 67 F.3d at 429; see also id. at 428,
431. Thus, the district court correctly fashioned
"a remedy that both cured the past constitutional
violation and obviated the threat of future consti-
tutional violations." App., infra, 8a.
Ordinarily, local governments enjoy considerable
discretion in making land-use decisions.  Where,
however, a municipality's zoning code was enacted
in violation of federal constitutional or statutory
requirements, as the court of appeals found was the
case here, the municipality is not immune from the
remedial power of a federal court. And where, as
here, the violation includes the threat of future ap-
plication of the invidiously adopted zoning code in a
discriminatory manner, the court's authority permits
it to order revisions that will prevent it from being
so construed and applied. As the court of appeals
recognized (App., infra, 10a), "the Village's history
and its disregard of this Court's clear holding that it

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13

was in violation of the FHA" gave no indication that
it would make the changes necessary to ensure
compliance with federal law.  In similar circum-
stances, federal courts have affirmed district court
orders striking down and revising municipal legisla-
tion where necessary to cure a constitutional vio-
lation and to ensure against future violations. See id.
at 7a (citing United States v. City of Parma, 661 F.2d
562, 578 (6th Cir. 1981), cert. denied, 456 U.S. 926
(1982); Huntington Branch, NAACP v. Town of
Huntington, 844 F.2d 926 (2d Cir.), aff'd, 488 U.S. 15
(1988) (per curiam)). Indeed, in Huntington, where
the town was found to have violated the FHA, this
Court affirmed a court of appeals' judgment that
directed the town to strike from its zoning code "the
restriction of private multifamily housing projects to
the urban renewal area and ordered the town to
rezone the project site to R-3M." 488 U.S. at 18.
See also Buchanan v. Warley, 245 U.S. 60 (1917)
(invalidating a city ordinance barring persons be-
cause of their race from acquiring real property in a
residential area). Here, the district court took a less
drastic approach by ordering revision of the zoning
code.
 2. Petitioner contends (Pet. 9-13) that the injunc-
tive relief exceeded the court's remedial authority
because there had been no injury to the private
respondents' right to pray.
Petitioner's argument constitutes, in essence,
a reprise of one of the arguments presented in
its earlier unsuccessful petition for a writ of certio-
rari in this case. Compare Pet. 9 (respondents have
"sustained no wrong that could be remedied by
an injunction") with Pet. at 10-19 in Village of
Airmont v. LeBlanc-Sternberg, cert. denied, 116

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14

S. Ct. 2546 [1996) (No. 95-1381) (arguing that no ripe
controversy between the United States and the
Village existed because there was no past or potential
future injury).
The injunctive relief entered in this case was
authorized under the well-established principle
that a plaintiff need not "await the consummation
of threatened injury to obtain preventive relief."
Pennsylvania v. West Virginia, 262 U.S. 553, 593
(1923). As  the court of appeals recognized (LeBlanc-
Sternberg, 67  F.3d  at  425), the FHA provides standing
to a person who believes he "will be injured by a
discriminatory housing practice that is about to
occur." 42 U.S.C.  3602(i)(2). That provision is prem-
ised on the long-standing doctrine that "a suit for an
injunction deals primarily, not with past violations,
but with threatened future ones; * * * an injunction
may issue to prevent future wrong, although no right
has yet been violated." Swift & Co. v. United States,
276 US. 311, 326 (1928); accord Farmer v. Brennan,
511 U.S. 825, 845 (1994).
The trial evidence demonstrated the necessity for
judicial intervention in this case. The court of
appeals had held that the Village had violated the
FHA "by passing a zoning code based on religious
animus."  App., infra, 7a.  It also expressly had
found that it was " `predictable from the evidence
in this record' that the Village would violate the
Constitution by enforcing the code in the future in
a discriminatory manner." Id. at 7a-8a. (quoting
LeBlanc-Sternberg, 67 F.3d at 434).  The incor-
poration of the Village of Airmont, for the expressed
purpose of enacting a zoning code to exclude Orthodox
Jews' home houses of worship, and the enactment of
the Airmont zoning ordinance itself, were designed to

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         15

chill the exercise of both First Amendment and FHA
rights. As has been often recognized, a "loss of First
Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury."
Elrod V. Burns, 427 U.S. 347, 373 (1976) (opinion of
Brennan, J.).
3. Petitioner contends (Pet. 13-17) that there is
a conflict among the courts of appeals on the question
whether the First Amendment requires an accom-
modation for religious worship that is burdened by
local zoning decisions.  Petitioner's argument is
virtually identical to one of the arguments advanced
in its earlier unsuccessful petition for a writ of
certiorari in this case. Compare Pet. 13-17 with Pet.
at 6-10 in Village of Airmont v. LeBlanc-Sternberg,
cert. denied, 116 S. Ct. 2546 (1996) (No. 95-1381).
Neither of the cases cited by petitioners (Pet. 13-
16) as purportedly in conflict with the decision below,
i.e., Lakewood, Ohio Congregation of Jehovah's Wit -
nesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th
Cir.), cert. denied, 464 U.S. 815 (1983), and Grosz
v. City of Miami Beach, 721 F.2d 729 (llth Cir.
1983), cert. denied, 469 U.S. 827 (1984), involved
allegations-let alone, as here, findings-of inten-
tional discrimination. The plaintiffs there did not
claim that the zoning laws were intended to impede
the practice of religion. Both of those cases involved
application of neutral laws of general applicability
which, under Employment Div., Dep't of Human
Resources v. Smith, 494 U.S. 872 (1990), "need not be
justified by a compelling governmental interest even
if the law has the incidental effect of burdening a
particular religious practice." Church of Lukumi

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16

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
(1993). 9
Lakewood involved a zoning ordinance that pro-
hibited the building of a church in a residential
neighborhood. As applied to the Congregation of
Jehovah's Witnesses, the ordinance resulted in the
Congregation's not being able to build a new church
on a lot that it owned. That location had "no religious
or ritualistic significance" to the plaintiffs and the
zoning ordinance did "not prevent the Congregation
from practicing its faith" elsewhere. Lakewood,
699 F.2d at 306-307. The court emphasized that the
ordinance did not have the purpose or effect of pro-
hibiting the Jehovah's Witnesses or any other faith
from practicing its religion. Ibid. The ordinance
"simply regulated] a secular activity and, as applied
to the [Congregation], operate[d] so as to make the
practice of their religious beliefs more expensive."
Id. at 307 (quoting Braunfeld v. Brown, 366 U.S.
599, 605 (1961) (opinion of Warren, C.J.) (emphasis
omitted). The court in Lakewood contrasted the
situation there from that in Keego Harbor Company

___________________(footnotes)

9 This case does not involve a claim under the Religious
Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2030bb et
seq., which was enacted in response to this Court's decision in
Smith. RFRA restores the compelling interest test, as set
forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin
v. Yoder, 406 U.S. 205 (1972), for claims involving govern-
mental action that substantially burdens a person's exercise of
religion, even if the burden results from a neutral rule of
general applicability. Therefore, there is no reason to hold this
petition pending the disposition of City of Boerne v. Flores,
No. 95-2074 (argued Feb. 19, 1997), which presents the question
whether RFRA is a constitutional exercise of Congress's
legislative authority under Section 5 of the Fourteenth
Amendment.

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17

v. City of  Keego Harbor, 657 F.2d 94 (6th Cir. 1981), in
which a zoning ordinance had been declared un-
constitutional because "its purpose and effect were to
eliminate from the city the exercise of a first amend-
ment right." Lakewood, 699 F.2d at 307.
Similarly, in Grosz, there was no contention that
the zoning laws at issue were "based upon disagree-
ment with religious tenets or practices, or [were]
aimed at impeding religion)" 721 F.2d at 733, and it
was uncontroverted that "the law has both secular
purpose and effect," id. at 738. There was no religious
necessity that the religious services at issue in that
case be held in the particular location at issue; the
Eleventh Circuit found that the home of the rabbi in
which the religious services were conducted was
within four blocks of a district in which publicly
attended religious services were allowed, and that
such services were allowed in one-half of the city's
territory. Id. at 731,739.
More recently, the Eleventh Circuit in First
Assembly of God of Naples, Florida, Inc. v. Collier
County, 20 F.3d 419, modified on other grounds on
denial of rehearing, 27 F.3d 526 (1994), cert. denied,
513 U.S. 1080 (1995), noted the special analysis that is
required when a zoning ordinance singles out a par-
ticular religious practice for unfavorable treatment.
The court contrasted the situation in Grosz from
that in Lukumi Babalu Aye, where the local law
was held to violate the Free Exercise Clause because
it "target[ed] the use of animal sacrifice for reli-
gious purposes." Id. at 423.  In both Grosz and First
Assembly of God, the challenged enactments were
found to be of general applicability and not motivated
by hostility toward religion, so that the compel-

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18

ling interest analysis applied in Lukumi was not
applicable. Id. at 424. 10
Unlike Lakewood and Grosz, the instant case in-
volves purposeful discrimination based upon religion.
The Village of Airmont was incorporated for the pur-
pose of deterring Orthodox Jews from residing in
Airmont in violation of the FHA, and it conspired
to impede the private respondents' exercise of their
First Amendment free exercise rights. LeBlanc-
Sternberg, 67 F.3d at 429,431. The court of appeals'
decision in this case is consistent with the only de-
cision cited by petitioner (Pet. 16) that involved pur-
poseful discrimination against a particular religious
group, i.e., Islamic Center of Mississippi, Inc. v. City
of Starkville, 840 F.2d 293 (5th Cir. 1988). In Islamic
Center, the court concluded that the city "favored
Christian churches over Muslim mosques" by grant-
ing exemptions from its zoning ordinance for every
Christian denomination that had applied, and denying
an exemption only to the Islamic group. Id. at 294,
297, 302-303. There also was evidence that the ad-
herents of the particular religious faith needed a
place to worship near their homes because travel by
automobile was unavailable, as well as evidence that
the governmental entity applied a stricter standard to
the needs of non-Christian religious organizations.
Ibid.

___________________(footnotes)

10 In an amendment to its decision, added in the course of
denying a petition for rehearing and suggestion of rehearing en
banc, the First Assembly of God court noted that RFRA might
be applicable to the claims in that case. It declined to address
that issue, however, because it had not been raised by either
party.  First Assembly of God of Naples, Florida, Inc. v.
Collier County, 27 F.3d 526 (llth Cir. 1994), cert. denied, 513
U.S. 1080 (1995). See note 9, supra.

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19

        CONCLUSION
The petition for a writ of certiorari should be
denied.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

ISABELLE KATZ PINZLER
Acting Assitant Attorney
General

JESSICA DUNSAY SILVER
MARIE K. McELDERRY
Attorneys

MAY 1997

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APPENDIX A

[UNPUBLISHED]

[Notice: This Summary Order may not be cited as
precedential authority, but may be called to the
attention of the Court in a subsequent stage of this
case, or in any case for purposes of collateral estoppel
or res judicata. See Second Circuit Rule 0.23]

UNITED STATES COURT OF APPEALS
  FOR THE SECOND CIRCUIT

No. 96-6149

RABBI YITZCHOK LEBLANC-STERNBERG,
CHANIE LEBLANC-STERNBERG, FRED WALFISH,
LEWIS KAMMAN, PARK AVENUE SYNAGOGUE, INC.,
     PLAINTIFFS-APPELLEES

         v.

ROBERT FLETCHER, NICK VERTULLO, RAYMOND KANE,
MAUREEN KENDRICK, JOHN C. LAYNE, INDIVIDUALLY
AND IN THEIR CAPACITIES AS TRUSTEES OF THE
VILLAGE OF AIRMONT AND AS OFFICERS AND BOARD
MEMBERS OF THE AIRMONT CIVIC Assoc., AND THE
VILLAGE OF AIRMONT, DEFENDANTS-APPELLANTS

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

  THE VILLAGE OF AIRMONT, AIRMONT CIVIC
ASSOCIATION, RALPH BRACCO, IN HIS CAPACITY AS
MAYOR OF THE VILLAGE OF AIRMONT, JOHN C. LAYNE,
RAYMOND KANE, CHARLES CALOTTA, AND RONALD
SABO, IN THEIR CAPACITIES AS TRUSTEES OF THE
VILLAGE OF AIRMONT, DEFENDANTS-APPELLANTS

(la)

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2a

Appeal from the United States District Court for
the Southern District of New York (Goettel,  J.

[Filed: Dec. 6, 1996]

Present: OAKES, MCLAUGHLIN and CABRANES,
   Circuit Judges,

This cause came on to be heard on the transcript of
record from the United States District Court for the
Southern District of New York and was argued.

ON C0NSIDERATION WHEREOF, it is hereby
ordered, adjudged, and decreed that the judgment of
the district court be and it hereby is AFFIRMED.

The Government filed an action under the Fair
Housing Act, 42 U.S.C. par 3601 et seq. ("FHA"), in
1991, against the Village of Airmont ("Village"),
alleging that the Village was formed for the purpose
of excluding Orthodox Jews by, among other things,
imposing restrictions on Jewish forms of residential
worship. Specifically, the Airmont Civic Association
("ACA"), an organization whose purpose was the
incorporation of the Village, was to enact a zoning
ordinance completely preventing worship in homes-a
primary method of Orthodox Jewish worship. At
roughly the same time, a private group of rabbis
initiated an action, which was consolidated with the
government case for discovery and trial. The private
action was before a jury, while the government action
was tried to the court.

After an eight week trial, a jury found that the
Village had violated the plaintiffs' rights under the

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3a

FHA and the First Amendment. The district court
(Goettel, J.) (S. D. N. Y.) then dismissed the govern-
ment action, reasoning that because the Village had
only passed the zoning regulations, but had not
applied the regulations, there had not yet been a
violation of the FHA. The district court refused to
order injunctive relief because: (1) it would be enjoin-
ing acts which were already illegal; and (2) "if there is
any action taken in the future which violates [the
Orthodox Jews'] rights, the United States Gov-
ernment . . . will not be timorous about suing."
United States v. Village of Airmont, 839 F. Supp.
1054, 1064-65 (S. D. N. Y.1993) (Airmont I), rev'd and
remanded, 67 F.3d 412 (2d Cir.1995), cert. denied, 116
S. Ct. 2546 (1996). The district court then granted the
Village's motion for judgment as a matter of law in
the private action, and set aside the jury verdict.

In September, 1995, this Court reversed, see
LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d
Cir.1995) (Airmont II), cert. denied, 116 S. Ct. 2546
(1996), reasoning that the evidence supported the
jury's determination that the Village had violated the
FHA. This Court held that there was evidence that
the events leading to the incorporation of the town
and the implementation of its zoning code "amply
support a finding that the impetus was not a legiti-
mate nondiscriminatory reason but rather an animos-
ity toward Orthodox Jews as a group." Airmont II, 67
F.3d at 431. The court also held that there was
support for the jury's finding that the motivation
behind the enactment of the zoning regulations was
anti-Semitism, and its "implicit finding that Air-
mont's zoning code would be interpreted to restrict
the use of home synagogues." Id. (emphasis supplied).

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4a

This Court held that the district court erred in
concluding that injunctive relief was not proper,
because the FHA explicitly provides that courts
enter injunctive relief against parties who have vio-
lated the FHA " `as is necessary to assure the full
enjoyment of the rights granted by the [FH.A].'"
Airmont II, 67 F.3d at 434. This Court held that
"[t]he view that such relief was premature because
Airmont had not yet actually applied its zoning
provision invidiously was a misapplication of the
[FHA]." Id. at 434-35. The Court then directed on
remand, that the district court "fashion appropriate
equitable remedies." Id.

On remand, Judge Goettel ordered:

.  A prohibitory injunction, enjoining the Village
from: (1) promoting religious discrimination; (2)
denying equal protection to religions by use, in-
terpretation, or enforcement of the zoning code;
and (3) discriminating in housing based on reli-
gion, or interfering with the exercise of religion
through housing.

.  A mandatory injunction, requiring the Village to
revise its zoning code so that it could not be
construed to prevent home worship, or to prevent
persons from walking to and from places of reli-
gious worship. The court specifically called for an
addition to the zoning code entitled "Residential
Place of Worship." Such places were defined as
"area[s] located within a residence that is used for
the conducting of religious services." The order
provided that such places "will be permitted by
right on any day in all residential zones."

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5a

. The retention of documents and notification pro-
visions. The Village was ordered to keep all docu-
ments related to zoning decisions, notify the gov-
ernment of any such decisions, or of any meetings
of planning or zoning boards at which applications
touching on religious worship will be presented.

LeBlanc-Sternberg v. Fletcher, 922 F. Supp. 959, 964-
65 n. 15 (S.D.N.Y.1996) (Airmont III).

We review a district court's award of equitable and
injunctive relief for abuse of discretion or a clear
error of law. See EEOC v. Johnson & Higgins, Inc.,
91 F.3d 1529,1542 (2d Cir.1996).

The Village argues that the mandatory injunction
conflicts with Milliken v. Bradley, 433 U.S. 267
(1977) in three respects: (1) the injunction is dispro-
portionate because there is "no existing violation by
[the Village];" rather "it was what the Village of
Airmont will `predictably' do that the Second Circuit
found improper in its appellate crystal ball;" (2) the
injunction is not remedial; and (3) the district court
usurped the role of the local government by creating a
new set of zoning regulations, thereby violating
well-settled principles of federalism. The Village is
wrong.
In Milliken v. Bradley, 433 U.S. 267,280-281 (1977),
the Supreme Court noted that a federal court exercis-
ing its equitable power must focus on three factors:
(1) the remedy must "be determined by the nature and
scope of the constitutional violation;" (2) the equitable
decree must be. remedial in nature, i.e. it must
" restore the victims of discriminatory conduct to the
position they would have occupied in the absence of
such conduct;" and (3) the federal courts must respect

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6a

the role of state and local authorities in the manage-
ment of their affairs.

Though by no means unlimited, the power of the
federal courts to remedy constitutional violations is
broad and flexible. See United States v. Yonkers Bd.
of Educ., 837 F.2d 1181, 1235 [2d Cir.1987). In general,
the power to intrude into municipal functions should
be exercised only where there has been a constitu-
tional violation. Id. The court should tailor its rem-
edy to fit the nature and extent of the violation. See
Milliken v. BradLey, 418 U.S. 717, 738 (1974); Swann
v. Charlotte-Mecklenburg Ed. of Educ., 402 U.S. 1, 16
(1971). "The Supreme" Court has not required that
the least restrictive means of implementation' be
adopted but has `recognized that the choice of reme-
dies to redress racial discrimination is `a balancing
process left, within appropriate constitutional or
statutory limits, to the sound discretion of the trial
court.'" Yonkers, 837 F.2d at 1236 (quoting United
States v. Paradise, 480, U.S. 149, 184 (1987) (quoting
Fullilove v. Klutznick, 448 U.S. 44%, 508 (1980)
(Powell, J., concurring),.(quoting Franks v  Bowman
Transp. Co., 424 U.S. 747, 794 (1976) (Powell, J., con-
curring in part and dissenting in part)))). The
district court has "first-hand experience with the
parties and is best qualified to deal with the `flinty,
intractable realities of day-to-day implementation of
constitutional commands,'" and must be given great
flexibility and broad discretion in choosing a remedy
best suited to curing the violation. Paradise, 480
U.S. at 184 (quoting Swann, 402 U.S. at 6). In deter-
mining whether [an] order was "narrowly tailored,"
the court must "acknowledge the respect owed a_ Dis-
trict Judge's judgment that specified relief is essen-

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7a

tial to cure [a Constitutional] violation." Yonkers,
837 F.2d at 1236 (quoting Louisiana v. United States,
380 U.S. 145,154 (1965)).

A district court has " `not merely the power but the
duty to render a decree which will so far as possible
eliminate the discriminatory effects of the past as
well as bar like discrimination in the future.'" Id.;
see also Swarm, 402 U.S. at 15 (scope of a district
court's equitable powers to remedy past wrongs is
broad). Equitable relief under the FHA may `be
structured to achieve the twin goals of insuring that
the Act is not violated in the future and removing any
lingering effects of past discrimination." Marable v.
Walker, 704 F.2d 1219, 1221 (llth Cir.1983). In the
past, this and other circuits have allowed federal
district courts to make changes to, and even strike
whole portions of, statutory codes to cure constitu-
tional violations by local municipalities and ensure
that the municipality did not violate the Constitution
in the future. See, e.g., United States v. City of
Parma, 661 F.2d 562, 578 (6th Cir.1981), cert. denied,
456 U.S. 926 (1982). We have, ourselves, specifically
ordered the rezoning of a municipality to ensure
compliance with Constitutional mandates. See Hunt -
ington Branch, NAACP v. Town of Huntington, 844
F.2d 926, aff'd, 488 U.S. 15 (1988).

1. Commensurate Remedy. The Village asserts
that there was no existing violation of the FHA, and
that the only violations were those found in the
Second Circuit's "crystal ball." However, this court
previously held that the Village had violated the FHA
by passing a zoning code based on religious animus,
and found it "predictable from the evidence in this
record" that the Village would violate the Constitu-

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8a

tion by enforcing the code in the future in a dis-
criminatory manner. Airmont II, 67 F.3d at 434.
This was an egregious constitutional violation, call-
ing for a commensurate injunctive remedy.  The
district court needed to fashion a remedy that both
cured the past constitutional violation and obviated
the threat of future constitutional violations. The
district court therefore issued a prohibitory injunc-
tion and a mandatory, forward-looking injunction.

The prohibitory injunction served to cure past
constitutional violations by forbidding a repetition of
the Village's past discriminatory practices. Judge
Goettel was clearly within his discretion when he
ordered the Village  to  cease promoting religious dis-
crimination, denying equal opportunity to religions
by use, interpretation, or enforcement of the zoning
code in a way to prevent home worship, and from
discriminating in housing due, to religion, or inter-
fering with the exercise of religion through housing.
Such actions are exactly those which the FHA
intended to curtail.

Judge Goettel was also clearly within his discretion
in ordering forward-looking, mandatory injunctive
relief against "likely" constitutional violations. The
affirmative injunction, requiring the Village to revise
its zoning ordinance  so that it could not be construed
to prevent home worship and to add provisions to
protect "Residential Place[s] of Worship," was neces-
sary to ensure that the Village could not hinder or
prevent worship in homes. The amendments to the
zoning regulations require the Village to allow, such
worship-an effective way of ensuring,  that the village
permits the use of residential dwellings for worship.

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9a

2. Remedial in Nature. Judge Goettel ordered
mandatory injunctive relief grudgingly, arguing that
in doing so he was forced to ignore the Supreme
Court's recent instruction that injunctive relief in
such cases be remedial in nature. Judge Goettel felt
that affirmative relief did not improve any rights
already exercised by Orthodox Jews in Airmont, but
"simply [was] insurance that there can be no
challenges to their exercise of religion in their homes
in the future," and therefore was not truly "reme-
dial." Airmont III, 922 F. Supp. at 964 n. 15. Gener-
ally, a remedial measure is one that places the parties
in a position they would have occupied but for the
constitutional violation. Missouri v. Jenkins, 115
S. Ct. 2038, 2048 (1995). However, that a measure is
prospective, because it deters future constitutional
violations, does not imply that it is not remedial. In
certain instances, prospective injunctions are essen-
tial to ensure compliance with constitutional and
statutory mandates in the future.  Cf. Alabama-
Tom big bee Rivers Coalition v. Department of In-
terior, 26 F.3d 1103, 1107 (llth Cir.1994).

Here, the injunction ensured that rights to free
exercise of religion were unencumbered, and the con-
stant threat of limitation of those rights was lifted.
This forward-looking aspect of the injunction only
requires that the Village do that which the FHA and
the Constitution already requires. See Marable, 704
F.2d at 1221 (FHA injunction may be structured to
ensure FHA not violated in future and to remove
effects of past discrimination).  In that regard, it
placed the parties in a position which ensured that
their constitutional rights remained inviolate.

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10a

3. Federalism.  There is, of course, always a
federalism concern when the federal court steps in to
remedy some municipal problem. This court has
cautioned that federal' courts should not encroach on a
state's ability to remedy constitutional deficiencies,
should not use a "sledgehammer where a more deli-
cate instrument will suffice," and should not "move
too quickly where it appears that the state . . . will
in its own way adopt reforms bringing its system into
compliance with the Constitution." Dean v. Cough-
lin, 804 F.2d 207, 213 (2d Cir.1986). Here, there was
no indication that the Village was going to make the
changes necessary to guarantee that no constitu-
tional violations occurred in the future. Indeed, this
Court ruled that future violations were "likely."
Given the Village's history and its disregard of this
Court's clear holding that it was in violation of the
FHA, this injunction was necessary to ensure that
the Village complied with the mandates of the FHA.

We have considered all of the arguments raised by
the Village, and find them to be without merit.

Accordingly, the judgment of the district court is
AFFIRMED.

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lla

APPENDIX B

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

No. 91 Civ. 2550 (GLG)

RABBI YITZCHOK LEBLANC-STERNBERG,
CHANIE LEBLANC-STERNBERG, FRED WALFISH,
LEWIS KAMMAN, PARK AVENUE SYNAGOGUE, INC.,
      PLAINTIFFS

v.

ROBERT FLETCHER & NICK VERTULLO, RAYMOND
KANE, MAUREEN KENDRICK, AND JOHN C. LAYNE,
INDIVIDUALLY AND IN THEIR CAPACITY AS TRUSTEES OF
  THE VILLAGE OF AIRMONT, DEFENDANTS

No. 91 Civ. 8453 (GLG)

UNITED STATES OF AMERICA, PLAINTIFF

v.

  THE VILLAGE OF AIRMONT, AIRMONT CIVIC
ASSOCIATION, RALPH BRACCO, IN HIS CAPACITY AS
MAYOR OF THE VILLAGE OF AIRMONT, JOHN C. LAYNE,
RAYMOND KANE, CHARLES CALOTTA, AND RONALD
SABO, IN THEIR CAPACITIES AS TRUSTEES OF THE
   VILLAGE OF AIRMONT, DEFENDANTS
                                         
     [Filed: Apr. 25, 1996]
                        
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12a

    MEMORANDUM DECISION

GOETTEL, District Judge.

Following a reversal of its earlier decisions,
United States v. Village of Airmont, 839 F. Supp.
1054 (S.D.N.Y. 1993), and LeBlanc-Sternberg v.
Fletcher, 846 F. Supp. 294 (S.D.N.Y. 1994), and remand
from  the Second Circuit Court of Appeals, LeBlanc-
Sternberg v. Fletcher,- 67 F.3d 412 (2d Cir. 1995),
petition for cert. filed, 64 U.S.L.W, 3605 (U.S. Feb. 26,
1996) (No. 95-1381), this, Court must no-w comply with
the Second Circuit's directives in fashioning appro-
priate remedies. The parties in these two actions
(which were tried and appealed together) differ
entirely as to what is expected of this Court at this
point. In order to understand the dispute, it is neces-
sary to review the history of the litigation in some
detail.

    HISTORY OF THE LITIGATIONN

The Town of Ramapo ("Ramapo" or the "Town") in
Rockland County, New York, is a large geographical
area composed of a number of incorporated villages
and unincorporated areas. It has a substantial Ortho-
dox Jewish population, consisting primarily of Hasi-
dic Jews.

In recent years, the tendency of villages to incorpo-
rate for purposes of asserting local government con-
trol has increased substantially. Indeed, twelve vil-
lages have broken away from the Town of Ramapo.1

1 A couple of the villages were formed by Orthodox Jewish
groups for the admitted purpose of creating Hasidic enclaves
so that the village residents could comply with Orthodox Jew-

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13a

In the Airmont area of the Town, a group calling
themselves the Airmont Civic Association ("ACA" or
the "Association"), a not-for-profit association, was
formed to seek the incorporation of a village ("Air-
mont" or the "Village"). Although the first president
of that Association and a number of its leaders were
Jewish, they were not Orthodox, and the Association
admittedly sought incorporation of the Village of
Airmont because some of its members felt that the
Town of Ramapo was adopting zoning measures un-
duly favorable to Hasidic Jews. Their initial concern
was multiple-family housing in areas zoned for single
family residences. Another aspect, and a focus of
later ACA concern, was the allowance of home syna-
gogues ("shteebles") in residential areas through a
liberal interpretation of the Town's Home Profes-
sional Office zoning law. Through that provision,
groups of up to 49 persons were allowed to attend
services in a home in a residential area provided that
the portion of the home used for that purpose did not
exceed half the dimensions of the ground floor and
provided that only two employees were involved.

In early 1989, a referendum on incorporating the
Village of Airmont was held, which passed by a three-
to-one margin. The operation of the Village was, how-
ever, delayed for two years due to litigation com-
menced by Orthodox groups and real estate interests.
The Village was finally incorporated in April 1991.
Two days later, before the Village had actually
commenced operation, an Orthodox Jewish Rabbi,
Yitzchok LeBlanc-Sternberg (who is Hasidic), and
members of his congregation instituted a private suit

___________________(footnotes)

ish law. The United States government saw no unfair housing
problems with respect to the formation of those villages.

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14a

claiming that the formation of the Village violated
their First Amendment rights and the Fair Housing
Act. 42 U.S.C. par 3601 et seq. The action principally
sought large monetary damages and the dissolution of
the Village.2 The following month Village elections
were held, and the slate of candidates supported by the
ACA was elected as Mayor and Trustees. (By that
point in time, however, the ACA was disbanding and,
when sued in this action, defaulted). Upon incorpora-
tion, the Village did not adopt a new zoning code but
continued operating for a period of time under the
Ramapo code. As discussed below, it was not until
1993 that the Village adopted a zoning code.
Prior to the Village's incorporation and the com-
mencement of the litigation, the LeB1anc-Sternberg
congregation, which was located in the Airmont
section of Ramapo, had already received zoning per-
mission from Ramapo to operate a home synagogue as
a "Home Professional Office" under the Ramapo in-
terpretations The LeBlanc-Sternberg congregation
has continuously operated their home synagogue for
the last six and one-half years.
In late 1991, the United States commenced a
separate action under the Fair Housing Act against
the Village and its then Trustees, alleging that the
Village had been incorporated for purposes of ex-
cluding Orthodox Jews through zoning restrictions
on their places of worship. The government sought a

___________________(footnotes)

2 They sought preliminarily to enjoin the election of Village
officials but this was denied by the Court because they had not
made a showing of irreparable harm. See LeBlanc-Sternberg v.
Fletcher, 763 F. Supp. 1246,1252 (1991).
3 While there were legal challenges to that zoning grant,
they were not pursued after the incorporation.

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15a

declaratory judgment and injunctive relief against
further violations, The private action and the govern-
ment action were consolidated for discovery and
eventually trial. The defendants demanded a jury
trial on the private action damage claims, but the
government's action, including claims for injunctive
relief, was tried to the Court, When the actions were
tried, the government's case involved factually not
only the LeBlanc-Sternberg congregation but also
another congregation headed by a Rabbi Chaim  Fried-
man.4
During the first year and a half of the pendency of
these actions, there was no zoning activity concern-
ing home synagogues. In January of 1993, however,
more than a year and a half after the private action
was commenced, and more than a year after the gov-
ernment's action was commenced, Airmont adopted
its own zoning code, which was approved at a public
meeting without objection. The new code modified the
Ramapo zoning provision regarding Home Profes-
sional Offices. It kept the same restrictions con-
cerning use of no more than half of the ground floor
and no more than two employees but added language
indicating that the Home Professional Office should

___________________(footnotes)

4 Rabbi Friedman's congregation had also commenced a
separate lawsuit looking for damages of its own. That action
remains pending before a different Judge in the Southern
District of New York. That congregation was attempting to
build a free-standing synagogue, which did not fall under the
home professional office exception. Although Friedman's ap-
plication to build the synagogue was eventually approved by
the Town Planning Board, the congregation had problems with
finances and safety aspects of the State's building code. In the
interim, it has functioned in the Rabbi's home as a Home Pro-
fessional Office.

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16a

not generate activities inconsistent with a residential
area. The change in the zoning code did not result in
any amended pleading being filed in either action or
any request for temporary injunctive relief being
made. Since the date, of its passage, the provision of
the amended zoning code concerning Home Profes-
sional Offices has never been applied or interpreted.
The consolidated cases went to trial in October of
1993. The trial lasted seven weeks. The jury delib-
erations lasted for a full week-the longest that this
Judge has ever seen for a civil case. The private
action was submitted to the jury on a special verdict
form containing a number of interrogatories. Eventu-
ally the jury returned the verdict form answering
most questions in favor of the defendants. It found for
all of the individual defendants awarding no damages
against any of them. It determined that the majority
of voters who favored incorporation were not moti-
vated even in part by discrimination against Orthodox
or Hasidic Jews. It did find, however, that the Village
had violated the private plaintiffs' fair housing rights
and had conspired to violate their rights to the free
exercise of religion or free speech. Despite these
findings, the jury did not award any damages against
the Village, not even nominal damages. In the view of
the only Judge present_ during these lengthy proceed-
ings, this was a compromise verdict and, to an extent,
an inconsistent one. This Court then decided the gov-
ernment's action in favor of the Village and its
Trustees, finding essentially that, while some bias
against the Orthodox Jews existed among Village
officials, the Village had done nothing to interfere
with their religious practices or fair housing rights.
Consistent with that, we reversed that portion of the

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17a

jury's verdict that had found against the Village.
Both plaintiffs then appealed.

   THE COURT OF APPEALS DECISION

The Court of Appeals first reversed this Court's
entry of judgment on behalf of the Village in the
private plaintiffs' case. In a lengthy opinion it noted
that the defendants had demanded a jury trial on the
damage aspects and held that, if a claim for damages is
joined with an equitable claim, the right to a jury
trial on all issues common to both claims prevails.
LaBlanc-Sternberg, supra, 67 F.3d at 426.

With respect to the apparent inconsistency of the
verdicts, it held that it was the duty of the District
Court to harmonize the jury's responses by seeking
an explanation supportable by the record to correct
the apparent inconsistency. Id. at 427. The appellate
panel divined that the jury "may have been persuaded
that the violative act [of the Fair Housing Act] was
the enactment of the Airmont zoning code," id. at 428,
and that it was a "fair inference" that the jury viewed
this as an act designed to limit home synagogues,
thus make housing unavailable to Orthodox Jews.5 Id.
                                                 
___________________(footnotes)
                                           
5 Since a Village is an inanimate body which cannot do
anything without human action, the Court of Appeals had to
explain why the individual defendants who had passed the zon-
ing change were not personally liable. The opinion resolves
this by noting that the jury was charged, in answer to its
specific question, that the Trustees had legislative immunity
with respect to their official acts in voting legislation. Id. at
428. As to whom the Village was conspiring with, since it could
not conspire with itself or its own officials, the Circuit Court
concluded that it was "easily inferable" [sic] that it had
conspired with the Airmont Civic Association. Id. However,
the ACA had gone out of existence and ceased activities before

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18a

It, therefore, found the jury's verdict consistent
"with fully supportable findings," id. at 429, which
were reasonable, and it required the District Court to
accord the jury's verdict such an interpretation.6 Id.
It chastised the trial court for making findings of
fact, for weighing the evidence, and for not following
findings that were "implicit" in the jury's verdict.7
Id. at 430.
The lengthy decision then cites all of the evidence
it could muster from the trial record to support its
factual findings. It concluded that, taking the evi-
dence in the light most favorable to the private
plaintiffs, "there was ample support for the jury's
implicit finding that Airmont's zoning code would be
interpreted to restrict the use of home synagogues,
that the motivation behind the enactment was
discriminatory animus toward Orthodox and Hasidic

__________________(footnotes)

the zoning code was amended. Indeed, it had been the subject
of a default judgment a year earlier.
6 The jury, having found for the individual defendants and
not having awarded any damages, it would seem that we were
dealing solely with injunctive relief, which is always a matter
exclusively for the Court.
7 With respect to factual findings, we note that the appellate
decision found that numerous outrageous anti-Orthodox state-
ments were made by various of the individual defendants.
While there was evidence, that such statements were made,
there was also evidence of denials by the various defendants of
having made such statements, in some instances supported by
tape recordings of the hearings in question. Moreover, while
the decision recites minutes concerning "a grim picture of a
Hasidic belt from Rockland through Orange & Sullivan
Countys," id. at 418, the minutes were reporting statements
made to the group by the Jewish Superintendent of Ramapo
who had been named as a defendant in the private action, but
had been dismissed on motion by this Court.

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19a

Jews, and that Airmont pursued this goal jointly with
ACA."8 Id. at 431. The opinion further held that
plaintiffs were entitled to nominal damages because it
was "plain error" for the trial court to instruct the
jury that it "may award" such damages, rather than
that it must do so, citing Gibeau v.. Nellis, 18 F.3d
107, 110-11 (2d Cir. 1994).9 Id. With respect to injunc-
tive relief, it held that on remand the Court should
consider "whether injunctive relief may also be ap-
propriate." Id. at 432. The Court did uphold the ver-
dict on behalf of the five individual defendants finding
that the plaintiffs had received a fair trial and there
was no basis for reversal of the verdicts in their favor.
Id. at 433.
With respect to the government's action, which un-
der this Court's decision had resulted in a complete
victory for the defendants, it held that the govern-
ment can get the benefit of nonmutual offensive col-
lateral estoppel, although it could not have been
imposed against the government. Id. at 434. Conse-
quently, having made findings resulting in a jury
verdict against the Village in the private action, it
held that this Court could not properly make findings
that contradicted what the appellate decision said the
jury had intended. 10 Id. The net effect was that by

___________________(footnotes)

8 See footnote 5, .supra, concerning the status of the ACA at
this point in time.
9 The appellate decision did not bother noting that this
"plain error" derived from a case that was not decided by the
Court of Appeals until months after the trial of this action.
10 This Court's decision had made extensive factual findings.
See United States v. Village of Airmont, 839 F. Supp. 1054
(S. D.N.Y. 1993). The appellate decision did not dispute any of
these specific findings but instead superimposed its view of the
jury's findings so as to render them immaterial.

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20a

appellate alchemy the government's total 10Ss was
converted into a complete victory. The government's
action was remanded for injunctive relief and the
fashioning of appropriate equitable remedies applying
Fair Housing Act principles. Id. at 435.

     INJUNCTIVE RELIEF

The Defendant Village's  Position
 
The Village opposes granting any injunctive relief.
It notes that the zoning code on which the Court of
Appeals focused did not come into existence until long
after these lawsuits had been filed.  The Village
argues  that there has  never been an application by the
Orthodox Jews (or anyone else, for that matter) for
additional places of worship in the Village, nor has
there been a request for interpretation of the zoning
code. Consequently, it contends that there has been
no demonstration of discriminatory impact, direct or
indirect, by the zoning code, either as written or as
applied. The Village notes that the private plaintiffs
conceded at trial that the Village had not interfered
with their worship services.11 Consequently, it as-
serts that the plaintiffs have not met their burden of
showing any real or immediate threat that they will
be wronged, citing City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983), nor have they demonstrated any
indication of real and imminent harm. Carey v.
Klutznick, 637 F.2d 834 (2d Cir. 1980); O'Shea v.
Littleton, 414 U.S. 488 (1974).

___________________(footnotes)

11 However, some individuals did make such attempts, albeit
unsuccessfully, by monitoring the number of persons attending
services,

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21a

The C ourt Of Appeals Holding

There is considerable substance to the Village's
argument. However, it has one fault-it is contrary
to the emphatic directions of the Court of Appeals
that injunctive relief must be granted to avoid dis-
crimination in a manner "found to be predictable from
the evidence in this record,"  LeBlanc-Sternberg,
supra, 67 F.3d at 434, and that "on a practice that  . . . . 
is about to occur" the Court is authorized to grant
injunctive relief. Id. at 425. With respect to the
claims brought under the Fair Housing Act, we are
directed to enter such injunctive relief "as is neces-
sary to assure full enjoyment of the rights granted by0
[the Act]."12 Id. at 434.

The Government's Request For Injunctive Relief
         
The Court of Appeals decision authorizes relief to
parties who "will be injured by a discriminatory hous-
ing practice that is about to occur," citing 42 U.S. C.
par  3602(i). Id. at 425. In light of that Court's interpre-
tation of the jury's verdict, as applied in the govern-
ment's case, the government has understandably
focused its request for injunctive relief on the zoning
code. However, rather than requesting prohibitory
injunctive relief against illegal or unconstitutional
applications of the code, the government has sought to
redraft the zoning code in an affirmative manner. In
its memorandum in support of its request, the gov-
ernment argues that "[t]aken together, these changes
will help ensure that the Village will permit the use

___________________(footnotes)

12 No citation of authorities for this proposition-i.e. where
no action has been taken or is imminently threatened-is set
forth by the Court of Appeals, other than the language of the
Act itself.

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22a

of residences for regular religious worship and that it
will otherwise respect the rights of Orthodox and
Hasidic Jews to live and pray in Airmont."13 Govern-
ment's Memorandum at 11.

The Village notes that the zoning changes re-
quested by the government would allow a home syna-
gogue to operate in virtually every house and could
completely eviscerate its zoning code. That may well
be. The Second Circuit opinion appears incompatible
with the decision of the Eleventh Circuit in Grosz v.
City of Miami Beach, Florida, 721 F.2d 729, 741
(1983), cert. denied, 469 U.S. 827 (1984), and the deci-
sion of the Sixth Circuit in Lakewood, Ohio Congre-
gation of Jehovah's Witnesses, Inc. v. City of Lake-
wood, Ohio, 699 F.2d 303, cert. denied, 464 U.S. 815
(1983). In addition, it `would appear to contradict an
earlier decision in this District which also concerned
Ramapo. Congregation Beth Yitzchok of Rockland,
Inc. v. Town of Ramapo, 593 F. Supp. 655 (S.D.N.Y.
1964). However, while we may disagree with the
ruling of the Circuit Court, we are compelled to fol-
low its directions.

___________________(footnotes)

13 The government's chages in the zoning code are obvi-
ously intended to assist only Orthodox Jews and not other
smaller religions that conduct home services, which is a ques-
tionable favoring of one religion. However, that conforms to
the Court of Appeals' conclusion that the need for home places
of worship is "unique to the Orthodox and Hasidic Jews." Id.
at 430-31. (The Court of Appeals reached this conclusion on the
debatable basis that Orthodox and Hasidic Jews were the only
ones who had applied to conduct services under Ramapo's
home professional office provisions.) There was, however, evi-
dence at trial of other small non-Jewish religious groups which
held home services.

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23a

Since the Village has clone nothing except pass a
zoning code which has never been enforced or inter-
preted, and there are no actions to overturn, it would
seem that there is no other way of satisfying the
remand directions except by revising the existing
zoning code.14 Consequently, we accept in general the
government's approach to amending the zoning code
as being the only practical wayof complying with the
remand order.15 We will, therefore, in a separate
order and judgment, enjoin the Village and its of-
ficers, employees, agents, successors, and assigns
from promoting religious discrimination; from deny-
ing equal opportunity to religion by use, interpre-
tation, or enforcement of the zoning code in such a
manner that it prevents home worship; from dis-
 
___________________(footnotes)

14Any attempt  to enforce the code in violation of the Fair
Housing Act or constitutional rights would, of course, be illegal
even without injunctive relief. However, as the government
argues, a preventive injunction can be enforced by contempt
sanctions without the necessity of instituting new litigation.
l5 We do this despite the Supreme Court's teaching in Rizzo
v. Goode, 423 U. S. 362 (1976), that, in light of considerations of
federalism, "[w]here . . . the exercise of authority by state
officials is attacked, federal courts must be constantly mindful
of the `special delicacy of the adjustment to be preserved be-
tween federal equitable power and State administration of its
own law.'" Id. at 378, citing Stefanelli v. Minard, 342 U.S. 117,
120 (1951). We also ignore the more recent Supreme Court
directive that equitable relief must be remedial in nature, i.e. it
must be designed to restore as nearly as possible the victims of
discriminatory conduct to the position they would have occu-
pied in the absence of such conduct. Missouri" v. Jenkins, -
U.S. -, 115 S. Ct. 2038 (1995). We do not see the relief
requested as improving in any way the rights already
exercised by the Orthodox in Airmont. The relief simply is
insurance that there can be no challenges to their exercise of
religion in their homes in the future.

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24a

criminating because of religion or interfering with
the free exercise of religion in connection with hous-
ing; and from taking any action that limits the
availability of housing on the basis of religion. Spe-
cifically, we will direct a revision of the zoning code
so that it will not be construed to prevent home wor-
ship, or to prevent persons from walking to and from
religious services at such places of worship, or to
prevent home worship services on any day in all
residential zones. In addition, the phrase "place of
worship" will be replaced with "free-standing place of
worship" throughout the zoning code and will be re-
defined so as to allow `a portion of the building to be
dedicated as living quarters for clergy and their
families; and the phrase "neighborhood place of wor-
ship" will be added and will refer to larger structures
used exclusively for the conducting of organized
religious services, which will be permitted in all
residential zones. In addition, as requested, we will
order that the last two sentences of the definition of
"Home Professional Office" be deleted.16

The government also requests that the Village be
directed to retain applications for residential homes
of worship for five years. In light of the changes made
in the zoning code, we do not foresee the need for
zoning applications. The government also requests
                                        
___________________(footnotes)

16 We do not wish to imply that we have any agreement
whatever with the Ramapo approach to home places of wor-
ship. While construing these as professional offices might have
been a satisfactory politicaI solution to a difficult question, it is
intellectually dishonest to categorize services involving up to
fifty people as being an activity of a home professional office
such as might be conducted by a doctor, lawyer or religious
leader who simply consulted with a couple of members of his
congregation.

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25a

that for five years the Village notify the government
of any zoning and planning applications which relate
to religious worship or changes in the zoning relating
to religion. While we deem it highly unlikely, under
the circumstances, that the Village would entertain
anything relating to religion under the zoning laws,
we see no harm in including that in the relief granted.

Private Plaintiffs' Requests

The private plaintiffs' main request for injunctive
relief is a major one: they seek the dissolution of the
Village. They argue that they have proved that the
defendants have engaged in a pattern or practice of
discrimination and that discriminatory intent was at
the root of the incorporation of the Village and conse-
quently, they maintain, they are entitled to this rem-
edy.

There are several fallacies to this argument. In the
first place, there has been no finding of religious
discrimination with respect to the incorporation of
the Village of Airmont. Indeed, the jury found that
the majority of voters who supported the incorpora-
tion of the Village were not involved in religious dis-
crimination.  Moreover, the appellate decision re-
manding the action focuses upon the change in the
zoning code as to which no action has ever been taken.
There is nothing in the Court of Appeals' decision
even remotely suggesting that the Village must be
dissolved. The Second Circuit has held, in Dean v.
Coughlin, 804 F.2d 207, 213 (1986), that we should not
use a sledgehammer where a more delicate instru-
ment will suffice. We believe that the relief requested
by the government and granted by this Court ade-
quately meets the Second Circuit's concerns ex-
pressed in their decision.

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26a

Another problem with the private plaintiffs' re-
quest is that it has no support in either the statute or
case law. The private- plaintiffs rely on Gomillion v.
Lightfoot, 364 U.S. 339 (1960). That ease was virtually
the converse of the present situation. The state
legislature in Alabama had revised the boundaries of
the City of Tuskegee so as to eliminate the famous
black Tuskegee Institute which included most of the
black residents of the City. The Supreme Court
reversed this action, finding that it was contrary to
the Fifteenth Amendment by depriving blacks of their
right to vote on account of their race.

Curiously, the private plaintiffs ask, alternatively,
for relief similar to what the Supreme Court con-
demned in Gomillion. They seek a plan to redistrict
the Orthodox "who reside in some localized area of
Airmont" back into the Town of Ramapo. We doubt
that we could adequately ascertain what the localized
area would be (The `six-lane New York Thruway
forms a natural boundary between Ramapo and Air-
mont.) Moreover, the Orthodox population in Airmont
has increased since the formation of the Village.
That relief also seems both contrary to the directions
of the Court of Appeals and of doubtful legality in its
own right. The Supreme Court recently ruled that
the government may not establish boundaries accord-
ing to religion. Board of Education of Kiryas Joel
Village School District v. Grumet, - U.S. -1 114
S. Ct. 2481 (1994). As the Second Circuit has held, the
purpose of the Fair Housing Act is to promote inte-
gration, not to encourage segregation. Otero v. New
York City Housing Authority, 484 F.2d 1122 (1973).
Finally, the local government law of New York has
provisions for alteration of municipality lines, incor-

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27a

poration or unincorporation of local villages. To the
extent that a discreet area of Airmont could be de-
scribed, we know of no inhibition on that area's hold-
ing a referendum to remove itself from the Village of
Airmont.

The private plaintiffs also request relief similar to
that requested by the government. (Indeed they join
in all of the government's requests.) The remand
instructed this Court that it "should consider  . . . . 
whether injunctive relief may also be appropriate."
LeBlanc-Sternberg, 67 F.3d at 432. While we question
whether the private plaintiffs, w-hose rights have long
been vested, require any injunctive relief at all, that
which has been granted in the government's action
will more than suffice. We believe that, to the extent
that their requests are justified, they have been ade-
quately encompassed by granting the government's
requests.l7

     DECLARATORY  JUDGMENT AND
	NOMINAL DAMAGES

While the Village disputes the need for declaratory
relief, the Court of Appeals remanded the action for a
declaration that the Village violated the Fair Hous-
ing Act. Consequently, we have no alternative except
to so declare. The action was also remanded for pur-
poses of granting nominal damages to the private
plaintiffs.  The remand does not indicate in what

 ___________________(footnotes)                                

17 At times in dealing with the private plaintiffs' action in its
opinion, the Second Circuit acts as if they were pursuing a class
action. They were not. They were seeking money damages
and the abolition of the Village on their own. Another Ortho-
dox group, as mentioned above, has pending its own separate
action.

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28a

amount the nominal damages should be, but the tradi-
tional amount has been $1.00. Consequently, we
award each of the private plaintiffs nominal damages
in the amount. of $1.00.

        ATTORNEY'S FEES
                                   
The remand decision. in this case did not mention
attorneys' fees. The private plaintiffs, however, re-
quest the Court to set a schedule for them to make an
application for attorneys' fees as the prevailing par-
ties in this action. We question whether the private
plaintiffs are truly the. prevailing party in the private
action. They lost to. the five individual defendant
who are clearly prevailing parties. Moreover, to the
extent that the private plaintiffs are the prevailing
party against the Village, they have not prevailed on
their major goals of recovering substantial monetary
damages and having the Village dissolved. While the
Supreme Court and the Second Circuit have been
taking dramatically different approaches to the need
for attorneys' fees to be proportionate to the success
obtained, the Supreme Court has held that a plaintiff
who obtains only nominal damages when suing for a
much larger sum is usually not entitled to attorneys'
fees, even though he technically qualifies as a pre-
vailing party. Farrar  v. Hobby, 506 U.S. 103 (1992);
but see Cabrera v, Jakabovitz, 24 F.3d 372, 393 (2d
Cir.), cert. denied, 115 S. Ct. 205 (1994).

There is a practical reason for not awarding the
private plaintiffs attorneys' fees here, Two of the
prevailing defendants have an application pending for
attorneys' fees.18 If we direct the Village to pay

___________________(footnotes)
                                     
18 This application was argued some time ago.  However,
after the appeal was fried and the appellate panel selected, this

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29a

attorneys' fees of the plaintiffs and the plaintiffs to
pay the attorneys' fees of the two individual defen-
dants, what we have will amount to directing the
Village to pay the attorneys' fees of the individual de-
fendants.19

We do not, however, rule on this matter at this time
since no application for attorneys' fees as such has
been made, rather a request that we set up a "sched-
ule." The private plaintiffs' counsel are free to make
any application which is timely, under the rules and
the case law. The issue will be decided at that time.

SO ORDERED.

Dated: April 25,1996
  White Plains, N.Y

/s/ GERARD L. GOETTEL
GERARD L. GOETTEL
U. S.D.J.

  
___________________(footnotes)

Court thought it prudent not to act upon their application at
that time.
 This in fact, is a relief which two of the individual defen-
dants, who were separately represented in this action, sought
to obtain in the first place.

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