Mamaroneck Village Settles Day School Case for Bargain Price

The Village of Mamaroneck will have to pay only $4.75 million to the Westchester Day School(WDS), instead of the $22 million in damages threatened by WDS's attorney, to settle a 2005 lawsuit brought by the private Jewish school after the village's Zoning Board of Appeals denied its 2001 application to build a 44,000-square-foot facility on its 26-acre campus on Orienta Point.

Mayor Kathy Savolt announced the settlement at a 7:30 p.m. press conference tonight, Jan. 14, prior to a regular meeting of the Board of Trustees, at which a resolution was passed approving the settlement and providing that the $4.75 million be paid to the WDS in three installments over three fiscal years. The first payment of $2 million is due 95 days after the agreement is made final. Future installments are due in 2009 and 2010.

Other terms of the settlement include elimination of the need for WDS to renew its special permits for the current permitted uses of its property and the application by WDS, within 90 days of the agreement, for site plan approval of its proposed new building.

The Day School's restraint in not pursuing an additional $17.25 million in damages for lost funding, increased construction costs and attorneys' fees is probably due to the fact that, with the exception of Deputy Mayor Tom Murphy-- who,throughout the trial and the subsequent appeals, had argued for settling the case-- none of the current trustees were members of the Village Board that approved the protracted and expensive litigation, which cost the village more than $900,000 in legal fees.

Savolt thanked WDS for not holding the entire community responsible for what she called "the irresponsible actions of a few individuals."

As noted by this reporter a little more than a year ago, as of Dec. 8 2006, the village had paid $417,971.14 to then ZBA special counsel Joseph Messina and $520,354.64 to Thacher Proffitt & Wood, the law firm of former Village Attorney Kevin Plunkett, who argued the case in District Court and in both appeals. At that point, the Day School was estimating its damages at only $5 million.

In her statement, Savolt noted: "Even though WDS offered to reduce the size of the building and make other changes, former village leaders took a hard line," which finally resulted in "a decision by the United States Circuit Court, the second highest court in the country, that the Zoning Board's stated reasons for denying the application were not substantiated by evidence in the record before it. The court stated the application was denied, not because of a compelling governmental interest that would adversely impact public health, safety or welfare, but. . .because of undue deference to the opposition of a small group of neighbors.”

Indeed, in his March 2, 2006 decision, the trial judge, District Court Judge William C. Conner, who was was particularly critical of then Zoning Board chair Mauro Gabriel's trial testimony. stated that "the ZBA's denial of the application was so contrary to the evidence and to the equities as to be arbitrary and capricious" and that the ZBA had "substantially burdened WDS's religious exercise. . .in violation of the Religious Land Use and institutionalized Persons Act (RLUIPA) . .."

The United States Congress passed RLUIPA in 2000, in the words of the Department of Justice, to prohibit "religious discrimination and unjustifiable burdens on religious exercise in land-use and zoning decisions."

Immediately following Conner's decision, losing attorney Plunkett told this reporter that, in his opinion, the decision was ripe for appeal all the way to the U.S. Supreme Court because, in its attempt to prevent discrimination against religious schools, Congress tipped the balance and opened the way for discrimination against secular schools.

However, in a friend-of-the-court brief, the U.S. Department of Justice stated:

"In October 2001, Westchester Day School applied for a permit which would allow it to construct a new classroom, connect two existing buildings, and renovate two additional buildings. The school has been in operation since 1948 and over the years the classrooms have become overcrowded and inadequate. The school sought expansion because the poor state of its facilities was undercutting its mission as a dual-curricular school offering religious and general education.

"In applying for its permit, the school submitted supplemental reports detailing parking requirements, traffic flows, fire code compliance, waterfront development compliance, and environmental impacts. After review, the Zoning Board of Appeals determined that no negative impact on the community would result from the expansion. Shortly thereafter, the board reversed course under pressure from the community, deciding that the expansion would have a negative impact. The school subsequently filed suit in U.S. District Court.. . .."

In its investigations of RLUIPA cases, the Justice Department's Civil Rights Division has found that most of them "have been resolved out of court through voluntary modification of potentially discriminatory zoning regulations." In the Mamaroneck case, however, even after the school had amended its application by reducing the size of the proposed building and agreeing to cap its enrollment, the ZBA, after approving the amended application, then attached conditions, including a decibel limit that would have precluded normal construction noise and a requirement that WDS's students' names and addresses be registered with the Buildings Department--a condition that local attorney John Romans, who had closely followed the case, called an "invitation to predators."

Attorney Barry Weprin, who was a member of the ZBA during the Day School deliberations and voted for its application, told this reporter that "in the summer of 2006 the Zoning Board held a special review of a smaller Day School proposal. It was approved 3-2, but after the meeting, the chairman [Mauro Gabriele] and board counsel [Joseph Messina] imposed conditions never discussed by the board and which were opposed by two of the three ZBA members who supported the resolution. . . Subsequently . . the board refused to reconsider those conditions by a 3-2 vote."

In the wake of the settlement, Murphy noted that “the Village had opportunities to end this case at no additional cost to the taxpayers," but "each time the majority of the previous Board of Trustees took the advice of the former attorneys and continued to throw good money after bad. It is time to resolve this case and focus our energies on other issues facing our village.”

The settlement agreement must be approved by the board of WDS and the judge who is presiding over the case.