Religion and Regulation

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First Amendment Series Regulatory
Religion You think its hot here!
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Religion and Regulation

• "Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof.
• The first part of this provision is known as the
  Establishment Clause, and the second part is
  known as the Free Exercise Clause. Although the
  First Amendment only refers to Congress, the U.S.
  Supreme Court has held that the Fourteenth
  Amendment makes the Free Exercise and
  Establishment Clauses also binding on states.

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(No Transcript)
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The Meaning of the Establishment Clause

• The government cannot enact legislation that aids
  one religion, aids all religions, or prefers one
  religion over another.
• It cannot force or influence a person to
  participate in, or avoid, religion or force a
  person to profess a particular religious belief.
• No tax in any amount can be levied to support any
  religious activities or organizations. Neither a
  state nor the federal government can participate,
  whether openly or secretly, in the affairs of any
  religious groups.

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Basics

• To determine whether an action of the federal or
  state government infringes upon a person's right
  to freedom of religion, the court must decide
  what qualifies as religion or religious
  activities for purposes of the First Amendment.

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What Qualifies?

• Religion is "a behavior, process or structure
  whose orientation is at least partially
  supernatural." But not always
• The 7th Circuit Court of Appeals ruled that
  prison officials erred because they did not
  treat atheism as a religion. The court said,
  Atheism is the inmates religion, and the
  group that he wanted to start was religious in
  nature even though it expressly rejects a belief
  in a supreme being
• The Supreme Court has said that a religion need
  not be based on a belief in the existence of a
  supreme being. In the 1961 case of Torcaso v.
  Watkins, the Court described secular humanism
  as a religion

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Secular Humanism

• A humanist philosophy that upholds reason,
  ethics, and justice and specifically rejects
  rituals and ceremonies as a means to affirm a
  life stance. The term was coined in the 20th
  century to make a clear distinction from
  "religious humanism". A perhaps less
  confrontational synonym is scientific humanism,
  which the biologist Edward O. Wilson claimed to
  be "the only worldview compatible with science's
  growing knowledge of the real world and the laws
  of nature".

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A Wide Variety

• Abode of the Eternal Tao - Taoism(12 million)
• Yoruba Voodoo Shango Santariaism (1.2
  million)
• Rastafarianism (700,000)
• Janism
• Syro Manlankara

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So, Can Religion Be Regulated?
The Lemon Test 403 US 602, 1972 quoting Lemon v
Kurtzman

• The Lemon Test - First, the statute must have a
  secular legislative purpose
• Second, its principal or primary effect must be
  one that neither advances nor inhibits religion
• Finally, the statute must not foster "an
  excessive governmental entanglement with
  religion."

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The Witnesses v Lakewood
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Congregation Of Jehovahs Witnesses v. Lakewood
Ohio

• Does a local zoning ordinance that prohibits the
  construction of churches in virtually all zoning
  districts, violate the Establishment Clause of
  the First Amendment.
• Lakewood, Ohio is a suburb of Cleveland with a
  population of 62,000. The land use is dominated
  by 1 and 2 family houses with a linear commercial
  district. There are few vacant lots remaining in
  the town

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Background

• The 175-member Congregation of Jehovah's
  witnesses, a non-profit corporation organized
  under Ohio law in 1972, has worshipped in
  Lakewood since 1944
• The Congregation's church building, called
  Kingdom Hall, is currently located in a
  storefront on one of the main commercial arteries
  in the City
• The central tenets and missions of the Jehovah's
  Witnesses are the distribution of literature to
  homes and on the street, and the conduct of
  in-home Bible studies for the purpose of
  instructing and encouraging people to apply
  biblical teachings to daily life.

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Controversy

• The Congregation decided to relocate Kingdom Hall
  and began searching for a site capable of
  accommodating a larger building. It entered into
  an option contract for and subsequently purchased
  a half-acre lot in northwest Lakewood
• The surrounding neighborhood consists of large,
  stately one and two-family homes, most of which
  were constructed before 1930. The design for the
  new Kingdom Hall featured a low, square building
  with a rustic stone exterior intended to blend
  with the neighboring properties. The design,
  insofar as possible, preserved the trees on the
  land and sheltered the forty-two car parking lot
  from homes nearby.

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The Problem

• The Congregation's lot is designated R-2,
  limiting its uses to single family dwellings and
  "roomers."
• Church buildings are permitted only in M-3, M-2,
  B-R, and B-2 districts, which comprise
  approximately ten percent of the City's land.

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The Allegation

• The Congregation claims that the ordinance
  infringes on its right to freedom of religion by
  prohibiting it from constructing Kingdom Hall on
  the lot it owns
• If the ordinance does infringe the Congregation's
  first amendment rights, the City must justify the
  ordinance by a compelling governmental interest
  (strict scrutiny).

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A Cardinal Principle of Faith

• Although a court's primary concern in determining
  whether religious freedom has been infringed must
  necessarily be the cost, economic or otherwise,
  attached to religious observance, case law
  highlights a secondary concern
• The centrality of the burdened religious
  observance to the believer's faith influences the
  determination of an infringement. Religious
  observances in the form of beliefs are absolutely
  protected from governmental infringement.

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The First Finding

• The burdens imposed on the Congregation by the
  ordinance are an indirect financial burden and a
  subjective aesthetic burden.
• The Congregation may build a church in Lakewood
  only in commercial or multi-family residential
  district. Land in these districts is more
  expensive and, the Congregation claims, less
  conducive to worship than the area where the lot
  is located. No pressure is placed on the
  Congregation to abandon its beliefs and
  observances.

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Second Finding

• But the First Amendment does not require the City
  to make all land or even the cheapest or most
  beautiful land available to churches. The
  Lakewood ordinance does not exclude the exercise
  of a first amendment right, religious worship,
  from the City.

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Summary

• In summary, the Lakewood ordinance is
  constitutional although it creates exclusive
  residential districts and thereby prohibits the
  construction of church buildings in the districts
• The facts of the present case show that the
  ordinance does not infringe the Congregation's
  religious freedom
• The ordinance merely frustrates the
  Congregation's desire to locate itself in a more
  pleasant, more convenient and less expensive
  location. Such desires, however, are not
  protected by the Constitution.

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Lemon test Applied

• the statute must have a secular legislative
  purpose
• Second, its principal or primary effect must be
  one that neither advances nor inhibits religion
• Finally, the statute must not foster "an
  excessive governmental entanglement with
  religion."

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City of Colorado Springs V Rev. Blanch

• Case filed in 1984

• Faith Bible owned and operated a church in
  Colorado Springs that was sold in April 1985
• Faith Bible purchased residential property at
  2804 Country Club Circle

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City of Colorado Springs v Richard Blanch

• Title was conveyed to Blanche and his wife.
• Blanche and Faith Bible commenced, organized,
  and institutionalized religious activities within
  the residence knowing that the property was
  located in an R-1 district.
• In an R-1 zone, religious institutions are not
  allowed as a permitted use, but may be allowed as
  a conditional use.

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Background

• Richard Blanche, who is the pastor for Faith
  Bible, and his family live in the Country Club
  Circle home.
• The residence is a four bedroom home with a
  family room containing a piano and approximately
  50 folding chairs set up in rows facing a podium.
• Blanche conducts religious services and other
  congregational activities at the home four times
  a week.
• These activities, which typically included sixty
  to seventy-five people, consisted of praying,
  singing, studying the bible, and teaching Sunday
  school.

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The Good Rev. In Front of His Church
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He Also Does Healing
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The Curtin Rises

• Colorado Springs issues a violation notice to the
  Rev. Blanch to cease operation as a church
• Blanch says to go take a hike
• Blanch is hauled into local court, fined 250 and
  ordered to perform 80 hours of community service

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Lights, Action

• Blanch holds services again
• Brought back to court and fined 1,000
• Courts issues permanent restraining order
  prohibiting the use of the home as a church
• Blanch does it again and the court holds him and
  Faith Bible in contempt and fines him another
  1,000
• The congregation passes the plate

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The Star of the Show - Blanch

• Blanche and Faith Bible claim that the City of
  Colorado Springs denied them due process and
  equal protection of the law by unconstitutionally
  abridging appellants' rights to freedom of
  speech, assembly, association, and religion.

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The Court Answers

• Colorado Spring did not abuse its authority
• Content neutral regulations that exclude
  religious uses from certain zones are
  constitutional insofar as the rules for the
  exclusion are rationally related to the goals of
  the police power
• This is a time, manner, place restriction and is
  based on the very real needs for parking, low
  intensity neighborhood activity

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The Free Exercise Test

• Whether the "exercise of religion" was adversely
  affected by the regulation
•  Whether the action "substantially burdened" the
  exercise of religion
• Whether the action was "in furtherance of a
  compelling governmental interest
• Whether the action was "the least restrictive
  means of furthering that compelling governmental
  interest

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Cardinal Principles
But what if a cardinal principle of a religion
brought harm to others or animals?
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Church Of The Lukumi Babalu Aye v City of Hialeah
Santeria (The Way of the Saints) is the common,
popular name. Quoting an essay on "The Lukumi
Tradition" by Afolabi Vodun (a.k.a. Vodoun,
Voudou, Voodoo, Sevi Lwa) is commonly called
Voodoo by the public. The name is traceable to an
African word for "spirit". Vodun's can be
directly traced to the West African Yoruba people
who lived in 18th and 19th century Dahomey
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Of Animal Sacrifice and Zoning

• This case involves practices of the Santeria
  religion, which originated in the nineteenth
  century.
• When hundreds of thousands of members of the
  Yoruba people were brought as slaves from eastern
  Africa to Cuba, their traditional African
  religion absorbed significant elements of Roman
  Catholicism
• The resulting syncretion, or fusion, is Santeria,
  -the way of the saints.- The Cuban Yoruba express
  their devotion to spirits, called orishas,
  through the iconography of Catholic saints,
  Catholic symbols are often present at Santeria
  rites, and Santeria devotees attend the Catholic
  sacraments.

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The Gods Of Santeria
ELEGGUA OBATALAOSHUN OYA YEMALLA SHANGO
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The Controversy

• According to Santeria teaching, the orishas are
  powerful but not immortal. They depend for
  survival on the sacrifice.
• Sacrifices are performed at birth, marriage, and
  death rites, for the cure of the sick, for the
  initiation of new members and priests, and during
  an annual celebration.
• Animals sacrificed in Santeria rituals include
  chickens, pigeons, doves, ducks, guinea pigs,
  goats, sheep,. The animals are killed by the
  cutting of the carotid arteries in the neck. The
  sacrificed animal is cooked and eaten, except
  after healing and death rituals.

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The Controversy

• The prospect of a Santeria church in their midst
  was distressing to many members of the Hialeah
  community, and the announcement of the plans to
  open a Santeria church in Hialeah prompted the
  city council to hold an emergency public session
  on June 9, 1987.

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The Animal Sacrifice
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The Result

• The ordinance defined sacrifice as
• it shall be unlawful for any person, persons,
  corporations or associations to sacrifice any
  animal within the corporate limits of the City of
  Hialeah, Florida. The final Ordinance, 87-72,
  defined slaughter as the killing of animals for
  food and prohibited slaughter outside of areas
  zoned for slaughter house use. The ordinance
  provided an exemption, however, for the slaughter
  or processing for sale of small numbers of hogs
  and/or cattle per week in accordance with an
  exemption provided by state law.
• All ordinances and resolutions passed the city
  council by unanimous vote.

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The Trial Court

• First, the court found that animal sacrifices
  present a substantial health risk, both to
  participants and the general public.
• The court found emotional injury to children who
  witness the sacrifice of animals.
• Third, the court found compelling the city's
  interest in protecting animals from cruel and
  unnecessary killing.
• The court determined that the method of killing
  used in Santeria sacrifice was unreliable and not
  humane, and that the animals, before being
  sacrificed, are often kept in conditions that
  produce a great deal of fear and stress in the
  animal
• Fourth, the District Court found compelling the
  city's interest in restricting the slaughter or
  sacrifice of animals to areas zoned for
  slaughterhouse use.

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The Supreme Court

• The city does not argue that Santeria is not a
  religion within the meaning of the First
  Amendment. Nor could it. Although the practice of
  animal sacrifice may seem abhorrent to some,
  religious beliefs need not be acceptable,
  logical, consistent, or comprehensible to others
  in order to merit First Amendment protection.

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Kennedys Observation

• Our review confirms that the laws in question
  were enacted by officials who did not understand,
  failed to perceive, or chose to ignore the fact
  that their official actions violated the Nation's
  essential commitment to religious freedom
• The challenged laws had an impermissible object
  and in all events the principle of general
  applicability was violated because the secular
  ends asserted in defense of the laws were pursued
  only with respect to conduct motivated by
  religious beliefs.
• Justice Kennedy

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Neutrality

• In sum, the neutrality inquiry leads to one
  conclusion The ordinances had as their object
  the suppression of religion. The pattern we have
  recited discloses animosity to Santeria adherents
  and their religious practices the ordinances by
  their own terms target this religious exercise
  the texts of the ordinances were crafted with
  care to proscribe religious killings of animals
  but to exclude almost all secular killings and
  the ordinances suppress much more religious
  conduct than is necessary in order to achieve the
  legitimate ends asserted in their defense.

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Every time You Go To Church It Is A Matter Of
Life Or Death
The practice of snake handling is based in the
Gospel according to St. Mark, Chapter 16, verses
17 and 18. In this passage, Jesus says, "And
these signs shall follow them that believe In my
name shall they cast out devils they shall speak
with new tongues they shall take up serpents
and if they drink any deadly thing, it shall not
hurt them they shall lay hands on the sick, and
they shall recover."
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Archbishop of San Antonio v City of Boerne, Texas
Located in the San Antonio Metro Area in the west
Texas Hill Country 2005 population about 8,000
people
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San Antonio Metro Area
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Religious Freedoms Restoration Act (RFRA) of 1993

• In this case the Supreme Court finds that the
  RFRA is a significant intrusion of Congress on
  the ability of the States to enact health,
  safety, and welfare laws for the good of its
  communities
• City of Boerne (Pronounced BURnee) v Archbishop
  of San Antonio

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The Setting

• Situated on a hill in the city of Boerne, Texas,
  some 28 miles northwest of San Antonio, is St.
  Peters Catholic Church. Built in 1923, the
  church's structure replicates the mission style
  of the region's earlier history. The church seats
  about 230 worshippers, a number too small for its
  growing parish. Some 40 to 60 parishioners cannot
  be accommodated at some Sunday masses. In order
  to meet the needs of the congregation the
  Archbishop of San Antonio gave permission to the
  parish to plan alterations to enlarge the
  building.

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The Spanish Mission Style
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El Bishop
The Bishop Toasting His Decision to Allow The
Church to Renovate and Expand
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Action of the City

• The Boerne City Council passed an ordinance
  authorizing the city's Historic Landmark
  Commission to prepare a preservation plan with
  proposed historic landmarks and districts.
• The Commission must pre-approve construction
  affecting historic landmarks or buildings in a
  historic district
• The Archbishop applied for a building permit to
  enlarge the church
• City authorities, relying on the ordinance and
  the designation of a historic district denied the
  application.
• The Archbishop brought this suit challenging the
  permit denial in the United States District Court

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The RFRA Itself

• The impact of the Religious Freedoms Restoration
  Act requires a State to demonstrate a compelling
  interest and show that it has adopted the least
  restrictive means of achieving that interest.
• This is the most demanding test known to
  constitutional law.

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The RFRA is Unconstitutional

• If the historic landmark on the hill in Boerne
  happened to be a museum or an art gallery owned
  by an atheist, it would not be eligible for an
  exemption from the city ordinances that forbid an
  enlargement of the structure.
• Because the landmark is owned by the Catholic
  Church, it is claimed that RFRA gives its owner a
  federal statutory entitlement to an exemption
  from a generally applicable, neutral civil law.

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Who Should Prevail?

• Whether the Church would actually prevail under
  the statute or not, the statute has provided the
  Church with a legal weapon that no atheist or
  agnostic can obtain. This governmental preference
  for religion, as opposed to irreligion, is
  forbidden by the First Amendment.

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No Comment
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ACLU v City Of Jersey City, NJ
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Of Sleds and Snowmen
First Amendment activist John Messina is
challenging a Christian nativity creches in a
public park. He charges that the "Christmas in
the Park" festival uses tax money, and should not
be a venue for religious proselytizing.
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  In School Dist. of Abington Township v. Schempp
(1963), Justice Goldberg, joined by Justice
Harlan, wrote, in respect to the First
Amendment's Religion Clauses, that there is "no
simple and clear measure which by precise
application can readily and invariably demark the
permissible from the impermissible." One must
refer instead to the basic purposes of those
Clauses. They seek to "assure the fullest
possible scope of religious liberty and tolerance
for all." They seek to avoid that divisiveness
based upon religion that promotes social
conflict, sapping the strength of government and
religion alike.
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1St Amendment Bedrock Principle

• The Constitution provides no guidance on matters
  of taste or aesthetics, it does provide
  protection for citizens to erect even the most
  energy-consuming, taste-challenged holiday
  display.
• In particular, the Free Exercise Clause
  guarantees the citizen's right to celebrate the
  season's religious origins.
• Thus, while the individual citizen can express
  himself or herself freely during the holiday
  season through the display of religious symbols,
  the Establishment Clause imposes constraints on
  the content of government-sponsored holiday
  displays.

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Take Home Point

• The Establishment Clause prevents government from
  sponsoring, celebrating, or endorsing religion.

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Background

• The City of Jersey City normally displays a
  Christian Nativity Scene and a Menorah during the
  holidays.
• After a number of formal complaints, the City
  added a decorated Christmas Tree and a sign that
  explained that the display was intended to
  celebrate the diversity of its citizens.

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District Court

• The District Court issued a preliminary
  injunction against Jersey City not to display the
  Nativity Scene and the Menorah.
• The following year, however, the City once again
  displayed both scenes and added Santa Clause,
  Frosty the Snowman, and a red, wooden snow sled.

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ACLU Actions Supreme Court

• The ACLU requested a permanent injunction and
  civil penalties against the City for violation of
  the first injunction
• The Lemon test is a three-pronged test requiring
  the following (1) the statute or government
  practice must have a secular purpose (2) its
  practical effect must be one that neither
  advances nor inhibits religion and (3) the
  statute or government practice must not foster
  "an excessive government entanglement with
  religion."

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Key Points

• We note that the expenditure of public funds to
  erect and maintain a religious display directly
  implicates the Establishment Clause
• Jersey City's display was erected and maintained
  with public funds.
• If a city taxpayer objected to the religious
  display, he or she could not have opted out of
  contribution to the display, even if
  fundamentally repugnant to his or her own
  beliefs.

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Point Two

• Jersey City's display of a creche was accompanied
  by a menorah, a sign, and a Christmas tree.
• Jersey City maintains that this context alters
  the message of endorsement conveyed by the
  display of the creche.
• The menorah is a religious symbol and when
  displayed with a creche, the menorah's religious
  significance is emphasized.

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CONTINUED

• Moreover, the token inclusion of the Christmas
  tree does little to mitigate the religious
  message of the creche and the menorah.
• Thus, the display cannot be viewed as anything
  but a constitutionally impermissible dual
  endorsement of Christianity and Judaism.

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Point Three

• There are three reasons why the City's
  diversity/pluralism justification fails to pass
  constitutional muster
• First, government endorsement of one or any
  number of different religions is
  unconstitutional.
• Second, a reasonable observer cannot be presumed
  to be aware of the various religious and cultural
  celebrations that take place throughout the year
  in Jersey City.

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Conclusion

• The City's policy of celebrating many different
  religions, while perhaps laudable, is a classic
  example of government entanglement with religion.
  

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Justice Breyer, June 27, 2005
 If the relation between government and religion
is one of separation, but not of mutual hostility
and suspicion, one will inevitably find difficult
borderline cases. And in such cases, I see no
test-related substitute for the exercise of legal
judgment
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The Jesus Center v Farmington Hills

• To what extent may a local government,through
  its zoning authority, limit a churchfrom
  undertaking, in the name of religion,activities
  that have a negative effect on the church's
  neighbors?
• The key to understanding this case is howmuch a
  regulation can burden areligious activity

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Western Suburb Region
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Jesus Center Staff
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Basic Facts

• The Jesus Center, rents a two-story building
  in a residential area. The church holds
  traditional services there, including Sunday
  morning and evening worship, weekly Bible study,
  and prayer meetings. For some time, The Jesus
  Center has also used the location as a collection
  and distribution point to supply food, clothing,
  and other essentials to needy persons.

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Expansion

• The controversy at issue here began in 1991 when
  The Jesus Center broadened its ministry to
  provide a shelter service to poor people,
  including some who are homeless.
• When the City of Farmington Hills (the City)
  learned about the shelter service, The Jesus
  Center was informed that it would be required to
  get zoning approval for this use of the
  property.
• The Jesus Center submitted an application to
  respondent, Farmington Hills Zoning Board of
  Appeals, requesting a ruling that the provision
  of shelter services was a permitted "accessory
  use" to the principal use of the property as a
  church.

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The Hearing

• People from the largely residential neighborhood
  surrounding were fearful for their families'
  safety because occupants of the shelter had
  approached residents asking for money, theft had
  increased since the shelter opened, and people
  from the shelter were loitering, trespassing on
  private property
• Others said that persons served by the shelter
  were alcohol abusers and that persons from the
  shelter had been seen urinating outside a local
  party store. Opponents of the application
  contended that the shelter was in operation all
  week long, not just on weekends, and also
  complained that the homeless were being bussed in
  from other communities.

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Here is How the Neighbors Saw It
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The Jesus Center Says

• Proponents of The Jesus Center argued that
  operation of the shelter was part of its
  religious mission
• They attempted to address community concerns by
  assuring that the shelter operated only on
  weekend nights during the winter, that the
  occupants were referred by the Neighborhood
  Services Organization, The Salvation Army, etc.,
  and that the occupants were screened for drugs
  and alcohol before being accepted
• The persons receiving shelter services were
  closely supervised and not allowed to leave the
  center to wander into the neighborhood.

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The Results

• The Board of Zoning Appeals rules that a homeless
  shelter/soup kitchen was not an allowed accessory
  use to a place of worship.
• An accessory is subordinate to the principal use
  of the land, is normal and customary, and is
  integral and supportive of the principal use

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Interpretation

• The Appeals court finds that the Boards refusal
  to interpret a Homeless Shelter as a permitted
  use substantially burdens the Jesus Centers
  exercise of free religious practices
• The court cites the fact that acts of charity and
  service to the poor are nearly universal in all
  religions
• Providing sanctuary and shelter to the poor has
  been part of the Judeo-Christian tradition for
  over two millennium

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And Also Finds

• Total prohibition was not the least restrictive
  means of limiting the land use rights of the
  Jesus Center.
• Arnold is incensed over the decision of the court
  and vows to pump the neighborhood up

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Westchester Day School, 2002

• Village of Mamaroneck, NY 28,752 persons

38.8 median age84,283 median income 553,033
median house
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The School
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The School
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Background

• The Westchester Day School WDS applies to the
  Village Zoning Board VZB for a permit to
  enlarge their school facilities
• The VZB examined the applicant for site location,
  environmental impact and, after two months of
  deliberation turns down the application
• The WDS files suit in federal court asserting the
  Village violated their rights under the RLUIPA
  (Religious Land Use and Institutionalized Persons
  Act of 2000) statute by substantially burdening
  their right of the free exercise of religion

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Religious Land Use and Institutionalized Persons
Act of 2000

• No government shall impose or implement a land
  use regulation in a manner that imposes a
  substantial burden on the religious exercise of a
  person, including a religious assembly or
  institution, unless the government demonstrates
  that imposition of the burden on that person,
  assembly or institution
• (A) is in furtherance of a compelling
  governmental interest and
• (B) is the least restrictive means of furthering
  that compelling governmental interest.

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Basis of Claim By The WDS

• WDS states that their existing facilities, some
  more that a century old, are inadequate for
  activities deemed necessary for its educational
  and religious mission
• WDS proposes to construct "Gordon Hall" to
  provide the school with many of the basic
  facilities it currently lacks,
• The additional classrooms will also enable the
  school to have smaller classes that are more
  conducive to learning, to allocate more
  rationally the space among the preschool,
  elementary school and middle school grades and to
  separate administrative functions from
  educational activities.

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Heart of the Issue

• The issue of whether WDS has made a prima facie
  case that RLUIPA has been violated. To make such
  a showing, plaintiff must present evidence that
  defendants' conduct in denying the application
  (1) imposes a substantial burden (2) on the
  "religious exercise" (3) of a person,
  institution or assembly.

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The Village Responds

• Defendants charge that WDS has failed  to
  demonstrate how the Village is substantially
  burdening their exercise of religion where the
  students at WDS have been, and continue to be,
  able to gather to pray and be educated just as
  they did before WDS applied for a modification of
  a special use permit.

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WDS Counters

• WDS should be able within reason, to accommodate
  the growing number of students who wish to pursue
  a Jewish education at WDS.
• Not be allowed to do so constitutes interference
  with their religion

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The Court Comments on the VZB Reasons for Denial

• There are two major reasons for denying WDS's
  Application -- traffic and parking.
• With respect to the issue of traffic intensity,
  we are un-persuaded by the opinions of additional
  experts relied on by defendants (since the ZBA's
  initial study of the potential adverse effects on
  traffic) which call into question the validity of
  WDS's traffic study.
• In any event, traffic concerns have never been
  deemed compelling government interests
  Important, but not compelling.").
• We find defendants' second concern, parking, even
  less compelling. Defendants' denial of the
  application based on an insufficient number of
  parking spaces is severely undermined by the
  joint request of both the Westchester County
  Planning Board and by the ZBA to decrease the
  number of parking spaces provided for in the
  application.

90
Conclusion

• We are firmly convinced that defendants' complete
  denial of WDS's Application was not based on any
  compelling governmental interest or on a fair
  balancing of environmental concerns with the
  rights to WDS to the reasonable use of its
  property
• Defendants' abrupt reversal of its prior 
  approval and its 3-2 vote to deny plaintiff's
  Application was a reaction to belated public
  outcry
• We find little rational basis for such community
  opposition in light of the nature and publicly
  beneficial purpose of the project as well as the
  great lengths to which WDS has gone to ensure
  that its physical plant will maintain the highest
  level of architectural and aesthetic quality

91
Repent!
92
The End