i understand that everyone is here we accordingly dispense with calling the calendar we want to welcome judge kaplan the southern district of new york who is joining us today we're grateful briefs in this case address a large number of issues i'd like to focus today on three of those issues first that the evidence did not prove discriminatory intent as to the two thousand and one in two thousand and four laws particularly two that the proper standard for a facial challenge was not applied in three that the plaintiffs not prove their challenge under loop the district court's conclusion that the two thousand and one and two thousand and four laws were enacted with religious discriminatory intent is clearly erroneous there can be no discriminatory intent for a law that when passed allowed an orthodox jewish institution to build the very school that they initially proposed to the village the two thousand and building their very primary in preschool it came to the village and asked about notably tartikoff did not even exist in two thousand and one the two thousand and one challenges included adding an accreditation requirement in a net a lot area requirement based on the number of students it continued prior existing zoning that did not allow dormitories the argument is that the last target is an orthodox jewish facility and even though that preexisted tartikoff was the sane religious animus that's the argument your argument i take it is that there was no evidence of religious animist with respect to the previous applicant or potential applicant that's correct there is no evidence in the record at all as to a religious animus that brought about the enactment of the two thousand and one law or any showing following the two thousand and one law that the that the that the original applicant or that the you shiva spring valley could not have built or gotten you necessary variances to the contrary your sheaves spring valley made an application following the  ent of the two thousand and one law that in that application was accepted was under consideration the only in went through the circa environmental process until you shiva spring valley with through their application because they sold their property for a profit of twelve million dollars prior to the two thousand and one law the pomona village ordinance at that time did not anticipate or or it didn't have any provisions with regard to educational institutions within the car within the confines of the village that correct it had nosed it had very limited requirements it had a definition of a school and it talked about a  not require a special permit the two thousand and one law changed it to make it a special permit recognizing that educational uses in a residential zone have impacts but the critical point calculations demonstrated they could have had up to one thousand students and still complied and they didn't ask for delimiters in fact rabbi from wits at the hearing the initial hearing said primary school children should live at home not in dormitories so when after the laws passed why yes v comes form with their application and they could build the very school they wanted to and in fact in two thousand and four the law was liberalized the changes in the two thousand and four law only made it easier it increased the number the types of agencies that could give accreditation it eliminated the net lot area problem and for the first time it allowed dormitories even though why has v was not asking for a dormitory other orthodox and its it icky shiva's in rockland county were building dormitories there are no statements that before the two thousand and one law the only references the district court makes are good statements they didn't fact were made by consultants who drafted a law that allowed  built so those statements can't be considered discriminatory and the statements by the consultants are met a festive no at least no overt animus for they said you need school zoning you should update your school zoning like any planner might do right that's correct your honor and in fact there was no indication of any animist on the part of the consultants and nothing in the memos they wrote had any discussion of religious activities as to the two thousand and four law the rabbi from awaits testified that he was aware of no commentary that was anti semitic during the process of his application the two thousand and four the only evidence that the court referred to was other activities of the village opposing the adult student housing law in ram opposed to run out of time let's have a couple more minutes but why don't you  take on the legal question your point to suddenly are the briefly the so learn how standard is the standard to be applied in this matter the district court's attempt to avoid that standard by relying on lukumi which is a limited statue limited exception as this court recognized in central rabbinical college that only applies where laws were written to stop a particular law applied to sectarian and nonsectarian schools under salerno the fact that why it's the could build it school demonstrates that was constitutional applied to that and would have been constitutional lied to many others if i could but if the if the district court was right with respect to the two later amendments or to put it more appropriately if the clearly erroneous with respect to the motivation for the two later amendments then aren't we really out of the question of facial challenge and don't we under heckler look at this from an equal protection point of view and conclude that of this group the tartikoff group was singled out on the basis of religion for different treatment then that's the end of it first if this court were to find as it should that the first two laws are constitutional the district court's decision below cannot be upheld one because the in the laws that would have the result of a poll of stopping them from building the rebbe nicol college the tooth that point is that local of five of two thousand and four  defined dormitory in such a way as to have prohibited the dorm rooms or accommodations with separate cooking and that would have been the end of tartikoff anyway that's correct as would  point and when it was remanded to the court pointed to that as a criteria that the district court had to address the district court here found that tartikoff had no reason the expectation but created its own exception for discriminatory conduct however this court in a bottle bought of it pointed out citing the quoting the language from bethel world ministries in the fourth circuit that there is a separate non discriminate clause lupa and it would render rights or per fluids to read that into the substantial burden so therefore since there was no reasonable expectation there was no substantial burden in this case and the reall what the with the village is doing here is they're basically asking for a do over there say they're asking the court to look at specific pieces of evidence that they believe they have some argument or toward and they ignore the hundreds of other pieces of evidence that the district  and exactly what evidence the reason is that the board of trustees want to number one of two thousand and one and local law number five of two thousand and four before to tell basically not at all your honor the consultants when they were drafting their law specifically referred to why they had laws that regulated schools very common laws but they realized that if they kept their laws which were typical in common in the area that some school could come into a particular piece of property such as the property of the shell and look for example there was correct me if i'm wrong prior to local law a number one two thousand and one no regulation whatsoever of density of development no minimum lot so as requirements all of which are gordon variety zoning provisions everywhere right i believe that there were  dimensional rick restrictions on perhaps realty to tax correct correct which is rather different isn't it well those are the same same laws your honor that still apply to libraries and museums in in the in the village and this is actually the basis for our realty equal terms argument that they have treated one assembly in institutional use different differently and worse than these other assembly has to show you says that district court ruled against us on this is part of our cross zoning changes that were made in two thousand and one didn't preclude the still could accomplish what it wanted to do could it not they did they did says under the zoning laws amended under two thousand and one the not actually no application for the issue of those application for the housing but nothing else the i thought your point is that they had applied they had applied for housing they were in the process of putting together an application what  village was him into the planning board and they laid out what they wanted to do and there was a lengthy discussion pros and cons and there was as i read it not a shred of anything that betrayed any hostility any anim at all with respect to that well that's you know it's not true your honor the village kept asking them if they were going to have dormitories so why would they ask them if they would have dormitories i would think the civically could you tell me where in the record i would f face of it they do peer to be legitimate concerns about you know zoning concerns what evidence is there that there was a religious animists here with respect to the first to last the first well with respect to  the i think we've we've talked about local i want to two thousand and one with respect to local law five of two thousand four also with respect to the first law you have trustee sanderson saying that spring valley was advised to discussion of why it is they had sold the property and so the man speculated maybe they decided to go to someplace that was friendlier but i believe that again isn't that accommodated by those specific laws why was the village concerned with what the town was going to allow in terms of accommodating a religious minority that was growing within its jurisdiction and what was the development in ram opposed that was of the issue it was the exactly the same development that the village prevented prohibited in pomona the idea of adult student housing the idea that there could be educational institutions that would allow students and their families to reside there in order to be able to study because of the particular needs of this kind of adults and housing for any kind of educational institution you know if it does so with this wallet i mean there's an ip i happen to live in a college community in upstate new york but there are other communities around that i don't think probably would like dormitories in their community the prohibition on dormitories alone doesn't have a religious implication because there are no such tarion and nonsectarian didn't have a dormitory could do you shiva after the passage of the two thousand and one law have accomplished gotten a special use permit and been able to build in accordance with the ordinance as amended under two thousand and one done yes now how is that statute discriminatory because it was it was not discriminatory specifically towards the achievement but towards the orthodox acidic we decided not discriminatory as  discriminatory animus as to something that's not proposed that the village doesn't sound like i don't understand the logic of the connection believe that the record shows that the that the village was asking the about the dormitories the idea form a tories was an issue no we don't intend to do so then the village went ahead and it may and the demands of the law of two thousand and one is well whether there will always pass before or after but in any event do you shiva could have built and got a special use permit to build and exist within the village that correct it's correct the the  laws again also rick regarded private schools as opposed to all schools in public schools you know a lot of public schools that have dormitories in k through twelve no but the again as as discussed the law as one of two thousand and one had specific regulations including the ten percent twenty percent limitation on it that that really is the subject here let me ask you the question that bothered me from the minute i read this record does anyone seriously doubt that the odds would have been ninety nine percent that if a group of people proposed to build a college db residential college for exactly the same cost and for yoga instructors that would house four thousand people in a village of three thousand that the outcome would have been exactly the same and you wouldn't have a leg to stand on if you were representing the developer well if the outcome being exactly the same would be to ban colleges that would have that number of people that would be one thing but that's not what the village did here that is what the law law are we talking about your honor the ones the latter ones that you're complaining about local one of two thousand and seven what my hypothetical is intended to get at is the very simple proposition that by its very nature this proposal whether made on behalf of a secular institution a public institution a private institution a jewish institution or a buddhist institution raised things that would have been highly objectionable to many inhabitants of the town and many political leaders of the town on its planning merits you're right my time is up  the the village passed laws that specifically prevent this college a a typical college wake forest could locate there another secular college that has normal dormitories that would bring thousands of students in would be allowed to live there what they prohibited was a specific form of housing that the village knew was meant to accommodate orthodox citic jews that religious minority and that's why that's what they prohibited that's the group that wish to commit i believe again given the villages hostility towards all sorts of orthodox hasidic development within its borders and outside of its borders while cultural diversity again putting viewing all of these facts as a whole stepping back and looking at the entire record here i don't think that it can be said that judge keris is decision was not a plausible interpretation of all of these facts what but a think you really touched on what is your view that the dormitory style the necessity of living as a family within the context of the of that school because of the long hours and the demands upon them on the course of study are in essence tied to the religious practice is that it absolute there i mean that's is that your linchpin that it's the dormitory aspect really because i mean just the fact that people want to live in a dorm or people want to have be able to cook in a dorm that doesn't have a religious connotation but in the connotation of the study the type of study for which this school sought to pursue that was an aspect of the excess of their expression of their religious beliefs that are absent absolutely or honor that the entire concept this idea of the of the torah community the idea that they would live or learn exist together with their teachers with their families and so on free from the interference of the outside world this is a sincerely held belief of the plaintiffs here let me ask you question  to what degree was there ever any proof before the district court that this was a real thing this could happen i mean there was never an application made  there was was there any proof before that there's no similar type of university or school anyplace in the world except perhaps in jerusalem or in israel i'm not can someone just walk in and say i want i'm going to build a college and it's going to be like this and has to be like this and suddenly have a claim is that it again i believe so your honor the plaintiffs like you so i could go to another community and say i'm i'm going to found the the the university of jesus christ almighty and there will be five thousand people studying there i mean i don't i don't really have any real plans of out of the necessary financer there doesn't have to be some kind of concreteness to it like an application may actually made to the village of the village with and and i around which the discriminatory animus could really crystallize the two points your honor first is the corporations principles testified at length about their desire to do this their sincerity their readability and their desire to do but they never filed an application well and i guess close second point i mean they bought the land i understand they showed the financial whe buy the land but that but they're standing arises without ever having been denied the opportunity to build is that because they want to completely shuts them out of possible for them and that's the fundamental aspect of that part of our cross appeal your honor there was nothing to apply for congregation or medical knowledge of tartikoff had no means by which the village could interpret its laws to prove permit really right let's start with the accreditation  you complain about you could have petitioned the board to alter that you could have argued to them that it's not a rational limitation to do it if the if the question your honor is did we petition the same legislative body to change the laws that they passed to prevent this use now but that's not an application that's under williamson county that's not an interpretation of the regulations regulation know exactly what it is i sat on a town board for a lot of years but it's done all the time to make way for developments has it not all the time our laws changed to make way for developments i believe that is correct you're absolutely and with respect to the wetlands what's the evidence in the record that there was no way to gain access to this property because of the as an existing driveway on the western side as it existing driveway that would not is not sufficient for this use and what evidence of that is there to believe that the testimony of barbara beale established that  it was not suitable why if you develop a site plan for this kind of use you have to meet certain criteria the theory of it she said it didn't meet that it would not be within a hundred that it would be within one hundred feet of that's entirely circular so let's now move on the property abuts route two  steep slopes based on that evidence the district court judge determined that it would not be feasible to access and one or two from about barbara bill said was that in order to gain access to route to  to there would have to be quote significant close quote grading that's the sum and substance of the evidence testimony was there anything else believe that there was testimony they built a four lane highway through it there is not a shred of evidence about how much regretting what it would cost whether it was feasible as an economic matter whether it was feasible as an engineering matter isn't at all true ground that it would take significant regrade all the word significant is is an adjective and it's a quotation from barbara bill and i'm asking whether there was any evidence whatsoever that would have permitted to conclusion that it was significant in a sense that in fact made it economically or technically impossible why don't you answer that and  then i believe that we've discussed the evidence of the evidence that there was to support that conclusion i agree with you i think you are thank you we'll hear from thank you dismiss found the wetlands to be a block subsequently on the same page he points out that the parties stipulate it as a fact that the property could be developed subdivided therefore there had to be access to the property as to the question concerning the site plan and subdivision by y e s v in fact y s v did private schools are limited in this zoning by law in the state of new york and we've cited to the case law in our brief local zoning does not control public schools public schools are exempt from local zoning  finally as to the issue of the dormitory as a religious belief it the position we pointed out is that the testimony of the actual witnesses the rabbis who were students the proposed dean was a long time rabbi and in the acidic church and the representative of tartikoff itself all gave testimony that they did not have a religious belief but they had to live with their families on the campus that in fact they could live off the campus and walk to the schools wasn't there evidence the other way also on that point i'm actually on that point your hon the there was not evidence from the parties from the witnesses saying that they had to live on the campus there was evidence about a taller community but there was nothing that excluded them from living in the fourteen ounces or from subdividing the property because they're only going to use thirty acres for the school subdividing the property in building houses for another seventy people that they could live next to the campus and walk to the campus that would have been completely consistent with their statement of what their religious beliefs was this case is it's back to what judge wesley raised earlier and that is does anybody have blogged so i'm asking the wrong way the way in which this lawsuit developed resulted in a decision did it not on a hypothetical hypothetical presupposes that the aspiration to an institution with four thousand people on the campus would actually happen and nobody has any idea whether that's really true zoning or knows right that's correct your honor which is why but we can in the villages consistently and remember there is letters in the in the record at the time that tartikoff raises before the lawsuit saying that they couldn't get a variance and they were suggested that they apply at that point for a zone change or a text amendment that the village was reason was ready to receive and see their plan no plan was ever proposed and as a result as you say your honor this whole case was built on a hypothetical that the court simply doesn't know what's going to be built in this as to the status ordinances constructed at that time could that could the college have received a used variance from the board or got a special permit to build the colleges and property in bt holdings in fact wasn't a change from zone a design b it was an unknown piece of property and this court held nonetheless they were required to at least make the petition and has judge kaplan has pointed out there's indications in the record that an application even for a text amendment concerning the accreditation law would have been favorably or at least neutrally received by the village because there was no indication in the and t e five nine four thank i would like to point out an alternate grounds for firmus here which is under the new york freedom of worship provision the village failed to argue any appeal of that holding of the courts the analysis is completely different its entire analysis with respect to the federal relief and free exercise claim is that the plaintiff fails to demonstrate a substantial burden on its religious exercise a level of scrutiny which is not required under the new york freedom of worship provision which simply says you balance the burden on religion with the governmental interests at stake and the village didn't argue with anything with respect to their interests your honor my