Case Document 1 Filed 12/30/05 Page 1 of 22 PageID 1 IN CF I LE Gregory V. Bitterman (GBI 180) US. 390 East Shore Road - - Great Neck, NY 11023 DEC 3 0 (516)369-3100 2035 at Attorney for Plaintiffs I LONG OFF UNITED STATES DISTRICT COURT - 0 5 6 0 EASTERN DISTRICT OF NEW YORK SONIA MAX SILVERSTEIN HEBREW ACADEMY, INC and EXL ER OHR MENECHAM OF GREAT NECK, INC, as successor-in-interest to SHARE CORPORATION, a wholly owned 5 idiary of DHENSTEIN, MJ, OF GREAT NECK, INC., Plaintiffs, against VILLAGE COURT OF GREAT NECK ESTATES, VILLAGE JUSTICE HAROLD HOFFMAN individually and in his capacity as VILLAGE JUSTICE, INCORPORATED VILLAGE OF GREAT NECK THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF GREAT NECK DAVID A. FOX, individually and in his capacity as former Deputy Mayor and current Mayor of the Incorporated Village of Great Neck Estates; SIDNEY KRUGMAN, HOWARD WILLIAM D. WARNER and EDY ZINGHER each individually and in their capacities as Members of the Board of Trustees of the Incorporated Village of Great Neck Estates; BARBARA DZIORNEY and MICHAEL BOGART, individually and in their capacity as Village Code Of?cers for the Incorporated Village of Great Neck Estates; and JOHN individually and in his capacity as chief of police of the Village of Great Neck Estates and the POLICE DEPARTMENT OF THE VILLAGE OF GREAT NECK ESTATES. Defendants. COMPLAINT Case Document 1 Filed 12/30/05 Page 2 of 22 PagelD 2 1. Sonia and Max Silverstein Hebrew Academy, Inc. (SHA) is a New York not for pro?t corporation, Orh Menachem of Great Neck, Inc. (0hr Menachem.) is a Delaware not for profit corporation, and, Chabad of Great Neck, Inc. (Chabad) is a New York not-for-pro?t corporation. All of the plainti?'s are located in Nassau County. 2. SHA is an Orthodox Jewish Nursery and Elementary School. 0hr Menachem is the Real Estate Holding company for 1 17 Cuttermill Road, Great Neck, NY 11021 (the Property) the location of SHA. 3. In April 1998, Chabad, a religious corporation, contracted to purchase property located at 117 Cuttermill Road in the Incorporated Village of Great Neck Estates ("Property") to use as a private parochial school for Orthodox Jewish children.l 4. The property, which was improved by an existing two-story commercial of?ce building, is located in an area of the Village zoned for commercial use known as a "Business District" and had on?site parking for 60 cars. At the time that Chabad contracted to purchase the property, schools were a permitted use "as of right" in Business Districts. In other words, no special or conditional use permits were required to operate a school. 5. Shortly after Chabad contracted to buy the property, Rabbi Yoseph Geisinsky, along with another individual af?liated with Chabad, in an effort to establish a good relationship with the Village, met with the then Mayor of the Village and informed him of the plans to convert the existing dilapidated of?ce building into a religious school that would beautify one of the main entrances to the Village of Great Neck Estates. Almost immediately upon learning of plaintiffs' plans, defendants took 1 Chabad assigned the contract to the SHARE Corporation, a corporation formed by Stanley Silverstein. The original intent was for SHARE to buy the property and lease it to the Sonia Max Silverstein Hebrew Academy a school named after Mr. Silverstein?s parents, for 1.00 per year. Mr. Silverstein, however, ultimately decided to donate his stock in SHARE to Chabad, which formed 0hr Menecham and merged it with SHARE. SHA, which is a separate and distinct Case Document 1 Filed 12/30/05 Page 3 of 22 PagelD 3 action in an attempt to keep plaintiffs from opening the school. Within weeks, the Village's Board of Trustees amended the Village Code in several signi?cant respects. First the Board amended Code ?128-12A(l) which listed "as of right" uses in Business Districts by eliminating "schools" from the list of permitted uses. The Board then amended Code entitled Conditional Uses" by creating a new category - "public or private elementary or secondary schools" - which required a Conditional Use Permit issued by the Board prior to property being used as a school. Finally, the Board amended Code 128-45 to dramatically increase the off-street parking requirements for schools by effectively requiring a school to provide parking spaces for students, including youngsters like those attending plaintiffs? school who are too young to drive.2 Because off? street parking is limited the change in the Code - requiring the school to provide parking spaces for all students regardless of age or their ability to drive - signi?cantly restricted the number of students who could attend the school. 6. The Code amendments became effective July 13, 1998, approximately three months after Chabad contracted to purchase the property but before the closing which occurred in November 1998. At the time of the closing, I was unaware that defendants had amended the Code to require a Conditional Use Permit for a school. 7. On or about November 19, 1998, almost immediately after the closing, plaintiffs applied for a building permit for the renovation work needed to convert the existing office building at the property into a school. The permit application was rejected by the Village's Building Inspector because no Conditional Use Permit had been issued by the Board. Not realizing the malice planned by Defendants, Plaintiffs thereafter applied to the Board for a Conditional Use legal entity from Chabad and 0hr Menecham, currently leases the property and Operates the school. 3 Prior to the amendment of 128-45 the Code required schools to have one parking space for each employee plus one space for each ?fteen students in the 12?,1 grade or above. The amendment changed the requirement to Case Document 1 Filed 12/30/05 Page 4 of 22 PagelD 4 Permit so that they could open and operate their religious school. Although there was virtually no community opposition to the issuance of a permit, the Board created numerous obstacles for plaintiffs. 8. The actions taken by defendants were designed to keep plaintiffs from using the property for religious purposes or, at least, to make such use so onerous that plaintiffs would abandon their plans and return the property to a commercial use. In frustration, plaintiffs contemplated giving up and selling the property. Only when defendants learned that plaintiffs were having discussions to sell the property to a Korean Church, did the Board suddenly relent and issue the permit. 9. It took two years for plaintiffs to finally be issued the Conditional Use Permit. The permit, however, contained forty conditions through The vast majority of the conditions imposed by the Board had nothing to do with matters of legitimate concern relating to the use of the property. Instead, the conditions were designed to control and limit the manner and method by which plaintiffs could operate their religious school and conduct their religious program. For example, the Conditional Use Permit contained the following conditions: a. A restriction limiting enrollment in the school to 72 students and nine employees, despite the fact that, in accordance with State rules, the legal occupancy of the building is approximately 200 people. b. A restriction that the school could only operate on weekdays with no evening or weekend activities. c. A restriction that the school could only operate from September through June with no summer school or other activities in July and August. d. A restriction that class hours be staggered. e. A restriction requiring 18 parking spaces although only nine employees were permitted. f. A restriction limiting when employees could arrive and leave work. one space for each employee pius one Space for each eight students. The l2"I grade requirement was eliminated, effectively requiring the plaintiffs to provide parking spaces for students who are too young to drive. Case Document 1 Filed 12/30/05 Page 5 of 22 PagelD 5 make numerous and expensive structural modi?cations to the existing building for which there was no legitimate need and which the Village had not required the prior commercial users to make. Even after the construction was completed. defendants continued to delay plaintiffs' opening of the school by imposing outrageous requirements for the issuance of a certi?cate of occupancy which had nothing to do with the structural integrity of the building, such as requiring the planting additional bushes. In all, it took four years before the SHA could move into the building and begin its program of religious and educational instruction for students. 12. Once plaintiffs ?nally occupied the building, defendants began a concerted effort to harass plaintiffs. For example, defendants placed the property under surveillance, going so far as, on occasion, posting the Village's Building Inspector outside to school to intimidate the people entering and leaving the premises and record the ongoing activities. Defendants also started charging plaintiffs with alleged violations of the Code and Conditional Use Permit, including violations for matters which were not prohibited by the Code or the permit. More speci?cally, a smnmons was issued for a too tall playground set. Not only is there nothing in the code regarding the high of playgrounds, but there are other playground sets in the village that are equal in height or taller that the one at Plaintiffs? premises. The Village Court, ignoring the fact that there was no code violation and that there were many other similar or taller playground sets in the village, found the Plaintiffs guilty and assessed the then maximum ?ne of $1000.00. It is interesting to note that the village never issued another ticket to Plaintiffs as they knew after the trial testimony they such a summons was inappropriate. 13. On January 13, 2003, the Board passed a resolution, without prior notice to plaintiffs, directing them "to show cause" before the Board as to why the Conditional Use Permit Case Document 1 Filed 12/30/05 Page 6 of 22 PagelD 6 should not be revoked or other penalty imposed for violating the conditions of the permit.3 In order to avoid closing the school and risk a trial before the biased Village Court, plaintiff agreed to remove over half the students from the building and place them in alternate, rented facilities, and negotiate with defendants in good faith. Regardless of the plaintiffs? concessions and actions, the defendants, sensing plaintiffs severe ?nancial situation as a result of using its building at less than 50% capacity since it opened, renting two other facilities, and problems with the parents of students who in some cases had children going to three different temporary school sites, strengthened there harassment of the plaintiffs, including causing plaintiffs to provide bussing for all students at a cost of thousands of dollars each week. This harassment also included but is not limited to written submission of how many children attended the school on a daily basis via reports to the Village. In fact, in January ?04 the Village issued a summons that SHA did not submitted such a list, when in fact such list was submitted at the end of December. (Since the school was to be closed the last week of December through the first week of January, in an effort to comply with the ??rst of the month deadline? required by the Village the list was submitted early!) When questioned at the trial for the summons for not submitting a January list the Village inspector, who issued the ticket, testified ?he did not know if January 1St was a holiday.? After taking the cue from the Village Judge he changed his 3 The resolution required plaintiffs "to show cause why the following conditions should not be abated or corrected, and why the conditional use permit for such premises should not be revoked or suspended, based upon the following alleged violations: (3) occupancy of the premises by a number of students in excess of the number permitted in the conditional use permit; presence at the premises of a staff consisting of a number of persons in excess of the number permitted in the conditional use permit; permitting or encouraging traf?c entering and leaving the premises in directions contrary to those required by the approved conditional use permit; play structures with a height in excess of that permitted by Code andforthe conditional use permit; misrepresentation in the application with reSpect to the numbers of children who would arrive and depart the premises by bus, rather than by private automobile. Plaintiffs were also directed to provide the Board with a certi?ed list of all enrolled students as well as a list of all staff members. Case Document 1 Filed 12/30/05 Page 7 of 22 PagelD 7 testimony to did not know if the school was opened on January 15"" Despite the fact that there was testimony that the list was submitted timely, the school was closed for vacation and the inspector?s testimony was somewhat less than believable, the Village Judge found SHA guilty. 14. After his election, Mayor Fox requested SHA to apply for a change of the conditional use permit. SHA welcomed this but soon found out that this was the start of the severe harassment campaign that severely damages the school and now threatens to close the school. Although tens of thousands of dollars were spent to do all the necessary environment, traf?c, neighborhood impact, etc. studies, just a few years before, and nothing had changed, Mayor Fox demanded new environmental and traf?c studies, and payment of $55,000.00 of disputed Village Taxes before a review of the application could be done. Mayor Fox knew of the ?nancial hardship to SHA as detailed above and used these two ?requests? to delay consideration of a new permit. It became clear that he wanted to put plaintiffs in a position where their existing permit would expire in December, ?05, and shut the school. Since complying with the Village required the school to loose hundreds of thousands of dollars there was no money left to comply with these new requests. SHA ?nally raised the funds to comply with the requests and paid the over $55,000 of illegal back taxeszs a result of the Villages communications to Town taxing authorities, Ohr Menachem had to bring a law suit to prove its tax exempt status. 0hr Menachem originally also named the Village in that law suit but realized that the Village would tie up a litigation against the Town so it dismissed the action against the village without prejudice. The Supreme Court Justice?s decisions and 0hr Menachem?s status. The defendants during this period dismissed the application as abandoned. In order to reactivate it the Village is looking for more taxes from plaintiffs. In addition, plaintiffs were issued several zoning violations which require them to appear in the Village Court for some of the same matters which are the subject of the Board's "show cause" order. Case Document 1 Filed 12/30/05 Page 8 of 22 PagelD 8 15. The defendants recently started issuing summonses as a result of alleged violations of the conditional use permit. The alleged basis for most of these summonses is that Plaintiffs have children in the school which would require the school to have a ?day care license.? As the transcript of the hearings required by the change of zoning indicate Plaintiff always intended 2-5 year olds to be part of the school and Defendant was well aware of it and even acknowledged this during the hearings. (Moreover, pursuant to Defendants own insistence as indicated above these transcripts become part of the conditional use permit.) Defendants in their efforts to destroy Plaintiffs determined that some of these young children required the Plaintiffs to have a day care license. Upon information and belief, upon discovering this, defendants reported this to the State of New York. The New York State Office of Family and Children Services investigated the situation and requested Plaintiff to apply for a license. It is important to note that the State found the Plaintiffs? facility to be of the highest caliber. All State approvals were in place and the only item required to complete the application was the approval of the Village! Needless to say the Village tried to hold Plaintiffs hostage to get the approval. The Village insisted on an agreement that the Plaintiffs would always pay taxes and limit the number of students to approximately half of the buildings capacity, among other things. The Village to ?irther turn up the heat on the Plaintiffs, knowing that the State would eventually deny the Plaintiffs? application without the Villages approval, began issuing extraordinarily expensive summonses for violating the Permit. When the Plaintiffs contemplated agreeing to the Villages strong arming, the tickets stopped coming, when the Plaintiff decided it could no longer acquiesce to the bully (such limitations would cause to school to go out of business because expenses would exceed income by over $50,000 each month) and told the Village it would not sign the restrictions, the tickets again began. (During this time the Village passed a law to raise the maximum penalty for these tickets from $1,000 to $2,500.) Since Case Document 1 Filed 12/30/05 Page 9 of 22 PagelD 9 the Plaintiffs did not want to break state law, the plaintiffs continued with a modi?ed two year old program that does not violate any State law. This modi?ed program further prevents the school from being pro?table and has the long term effect of preventing the school from cultivating students for the higher grades. The New York State Of?ce of Family and Children Services con?rmed that the Plaintiffs were not in Violation. The settlement agreement with the State, which required a $3600 settlement with the State because the Village refused to supply the State with its permission to run a two year old program. The State indicated that SHA was an exemplary program and would have happily issued a permit for a full day two year old program if only the Village would consent. Now the V2 day two year old program has only 5 students because most parents cannot pick up their children at noon. This will severely impact each subsequent grade because the two year old program is a feeder for the older grades. Upon information and belief the Village or its attorney provoked the state to commence its investigation. The state almost always investigates for some type of abuse, which was not the case here. Despite the States ?nding that SHA is in COMPLETE COMPLIANCE with its laws the Village, with full knowledge of the State?s decision is still issuing tickets for this alleged violation of the conditional use permit (for two year olds) once or twice a week to date. These summonses are unsustainable by a tribunal that follows the laws of the State of New York. 16. Fortunately for the Defendants, the Village Court and the Village Judge do not let the Criminal Procedure Law and the rules of evidence interfere with ?nding Plaintiffs guilty and imposing maximum ?nes on the Plaintiffs. It is clear that it is the intention of the Defendants to use these tickets to close the school. 17. The hearing for thirteen of these Summonses was scheduled for September 6, 2005, two days before the school reopened. The trial, as indicated in the complete transcript, shows 10 Case Document 1 Filed 12/30/05 Page 10 of 22 PagelD 10 how far the Village Justice, Harold Hoffman, ignored law and procedure to convict the Plaintiffs of all of the violations and the glee he expressed in imposing the maximum ?ne on each violation. Judge Hoffman imposed $22,700.00 of ?nes. An appeal with a motion to stay enforcement is currently pending in the Appellate Term of the Supreme Court of the State of New York, Ninth and Tenth Judicial Districts. The appellate court stayed the monetary judgment. Moreover Judge Hoffman at the end of the trial gleefully said that might add for you, your ability to appeal requires at least in the State Courts the payment of the ?nes first.? 18. It is clear that the Defendants do not want Plaintiffs in its village. Defendants have passed laws, started investigations, strong armed, issued bogus summonses, and done everything in their power to drive the Plaintiffs out of business. They are at the verge of succeeding because the Plaintiffs now have 55 students in the school which by all State and County laws should hold at least 150, (it is interesting to note that the previous Mayor, requested the consultants and the. engineers preparing the environmental impact statement to include their calculations for a student body of 150 he knew what was the capacity of the building) receive summons of $2,500 to $5,000 each week, and have had their reputation severely tarnished in the community as a result of the Defendants actions. Additionally, as a result of the student number and time of operation limitations the value of the building has been decreased and the school has run into severe ?nancial Not enough hours and students mean that the building is running at less than 50% capacity or zero capacity. Taxes and bills continue to incur and the school is forced further into debt, almost to the point of closing. Hence the defendants? actions are calculated not only to chase the plaintiffs ?om the Village but to deprive the plaintiffs of the value of their building. Prior to Mr. Silverstein donating the Property to 0hr Menachem his attorney said that SHARE Corp., the non-tax- exempt owner of the Property before 0hr Menachem, would pay taxes even though the building was Case Document 1 Filed 12/30/05 Page 11 of 22 PagelD 11 being used for a school. When Mr. Silverstein donated the building, the new owner was not bound by SHARE Corporations representations at the public hearings and hence sought tax exemption. 19. Upon information and belief all of the defendants are residents of New York and Nassau County and are either Municipalities or run or work for the Municipalites. ALLEGATIONS OF LAW 20. All acts of the defendants, their of?cers, agents, servants, employees, or persons acting at their behest or direction, were done and are continuing to be done under the color and pretense of state taw, including the ordinances, regulations, customs, policies and usages of the Village of Great Neck Estates. 21. Each of the defendants has had and continues to have personal involvement in the deprivation of plaintiffs' right to be free from arbitrary and discriminatory action based upon plaintiffs' religion, and each of the defendants has acted and continues to act individually and in concert to deprive plaintiffs of this right. 22. The plaintiffs have no adequate or speedy remedy at law to correct or redress the deprivations of their federal rights by defendants. 23. Unless and until the actions taken by defendants are enjoined, the plaintiffs will suffer and continue to suffer irreparable injury to their federal and state rights. FIRST CLAIM 0F RELIEF Violation oft/1e Free Exercise Clause ofrhe irst Amendment (42 (1.8. C. 1983) 24. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 25. Central to plaintiffs' religious observance are the practices of learning and Case Document 1 Filed 12/30/05 Page 12 of 22 PageID 12 associating with other Jews on a daily basis to pray, study and teach Jewish studies 26. Defendants' action, as described herein, target plaintiffs' religious expressions, gatherings and activities because plaintiffs are Orthodox Jews and members of a particular Cliasidic sect. Defendants have inhibited and restricted and continue to inhibit and restrict plaintiffs? practice of their religion. . 27. Defendants' actions are arbitrary and capricious and are not supported by a rational basis, let alone a compelling state interest. 28. Defendants' actions violate plaintiffs' rights under the Free Exercise Clause of the First Amendment to the United States Constitution as incorporated and applied to state action under the Fourteenth Amendment. 29. Each of the defendants has had and continues to have personal involvement in the violation of plaintiffs' Free Exercise rights, and each of the defendants has acted and continues to act individually and in concert to violate plaintiffs' Free Exercise rights. WHEREFORE, plaintiffs respectfully pray that the Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. SECOND CLAIM OF RELIEF Violation oft/19 Religious Land Utilization and Institutionalized Persons Act of 2000 (42 US. C. 9?2000etseq.) 30. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 31. In September 2000, Congress passed the Religious Land Utilization and Institutionalized Persons Act of 2000 RLUIPA prohibits local governments from Case Document 1 Filed 12/30/05 Page 13 of 22 PagelD 13 enacting or applying land use laws to property owned or used by religious institutions in a manner that would substantially burden religious exercise absent a compelling state interest in doing so and only after demonstrating that the burden is the least restrictive alternative available. 32. In this case, defendants' obstruction and prevention of plaintiff from fully utilizing the i 17 Cuttermill Road, Great Neck, New York as a school in an attempt to prevent religious instruction have placed and continues to place a substantial virtually crushing burden on plaintiff?s exercise of religion in a manner that is compelled by and central to Chasidic Jewish beliefs. 33. Defendants' delay and obstruction does not further a compelling government interest and is not the least restrictive means of furtherng a government interest. 34. In addition, defendants have imposed and implemented and continue to impose and implement land use regulations in a manner that "treats plaintiffs religious assembly or institution on less than equal terms with a nonreligious assembly or institution," "discriminates against plaintiff?s assembly or institution on the basis of religious denomination,? and ?unreasonably limits religious assemblies, institutions, or structures within ajurisdiction.? 42 U.S.C. 2000 cc. 35. Defendants? actions violate plaintiffs? rights under RLUIPA WHEREFORE, plaintiffs respectfully pray that this Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. THIRD CLAIM 0F RELIEF Violation ofthe Equal Protection Iause ofthe Fourteenth Amendment 36. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of 14 Case Document 1 Filed 12/30/05 Page 14 of 22 PageID 14 this Complaint and incorporate them herein. 37. Defendants, altering the law to require a conditional use permit for plaintiff and by threat of denial of plaintiffs? application for a conditional use permit, have prevented and continue to prevent plaintiff from practicing and teaching for religious activities while allowing similar secular activities in other buildings. 38. Defendants, through implementation of zoning and environmental regulations, have delayed and continue to delay and obstruct plaintiffs' application for a conditional use permit while approving in a timely manner similar applications. 39. Defendants have implemented zoning and environmental regulations in a discriminatory manner such that, compared with others similarly situated, plaintiffs nave been selectively and adversely treated. 40. Defendants' actions have been and continue to be motivated, at least in part, by invidious discriminatory intent in that defendants took their particular courses of action because of its adverse effects on plaintiffs as Orthodox Jews and members of a hasidic sect and with the intent to inhibit plaintiffs' free exercise of religion. 41. Defendants, actions violate plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. 42. Each of the defendants has had and continues to have personal involvement in the violation of plaintiffs' rights under Equal Protection Clause, and each of the defendants has acted and continues to act individually and in concert to violate plaintiffs' rights under the Equal Protection Clause. WHEREFORE, plaintiffs respectfully pray that the Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. Case Document 1 Filed 12/30/05 Page 15 of 22 PageID 15 FOURTH CLAIM OF RELIEF oHSpiracy to Deprive Plaintiffs of the Equal Protection ofthe Laws {42 US. C. ?1985(3)) 43. Plaintiffs repeat and reallege all matters set for in the preceding paragraphs of this Complaint and incorporate them herein. 44. Defendants conspired by forming an explicit agreement or tacit understanding to deprive plaintiffs of the equal protection of the laws. The impetus for defendants? conduct in depriving and threatening to deprive plaintiff of the equal protection of the laws is the fact that plaintiffs are Orthodox Jews and members of a particular Chasidic sect. 45. Defendants? actions thus, constitute a violation of 42 U.S.C, 1985(3). 46. Each of the defendants has had and continues to have personal involvement in the violation of plaintiffsl rights under 42 U.S.C. 1985(3), and each of the defendants has acted and continues to act individually and in concert to violate plaintiffs rights under 42 U.S.C. 1985(3). WHEREFORE, plaintiffs respectfully pray that the Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. FIFTH CLAIM FOR RELIEF Violation ofPZaintijjfs' Equal Rights to Hold Properly (42 US. C. 55? 1982) 47. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 48. Defendants, by threat of denial of plaintiffs' application for a conditional use Case Document 1 Filed 12/30/05 Page 16 of 22 PagelD 16 permit, have prevented and Continue to prevent plaintiff from using their Property for teaching and other religious gatherings. 49. Defendants, through implementation of zoning and environmental regulations, continue to prevent plaintiff from developing their property as a school and religious center. 50. In taking their particular courses of action, defendants have been motivated by their prejudice against plaintiffs as Orthodox Jews and members of a particular Chasidic sect. 51. Defendants? actions thus, constitute a violation of plaintiffs' rights under 42 U.S.C. ?1982. 52. Each of the defendants has had and continues to have personal involvement in the violation of plaintiffs' rights under 42 U.S.C, 1982, and each of the defendants has acted and continues to act individually and in concert to violate plaintiffs' rights under 42 U.S.C. 1982. WHEREFORE, plaintiffs respectfully pray that the Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. SIXTH CLAIM 0F RELIEF Violation ofDue Process Under the Fourteenth Amendment 53. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 54. Plaintiffs have a property interest in the use of their building and the change of the code is discrimination against plaintiffs and if it is appropriate, the defendants have substantially limited discretion to deny the permit. 55. Defendants, by delaying and obstructing by every available means plaintiffs' conditional use permit application because of plaintiffs' religious beliefs and practices, have and Case Document 1 Filed 12/30/05 Page 17 of 22 PageID 17 continue to arbitrarily and irrationally abuse and their government powers. 56. Defendants? actions thus, constitute a violation of plaintiffs' due process rights under the Fourteenth Amendment of the United States Constitution. 57. Each of the defendants has had and continues to have personal involvement in the violation of plaintiffs? right to due process, and each of the defendants has acted and continues to act individually and in concert to violate plaintiffs' right to due process. WHEREFORE, plaintiffs respectfully pray that this Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. SEVENTH CLAIM 0F RELIEF Violation of the Free Speech Clause ofthe First Amendment 58. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. I 59. Central to plaintiffs? religious observance are the practices of associating with other Jews on a daily basis to express their devotion to God through religious instruction, 60. Defendants, by threat of denial of plaintiffs? application for a conditional use permit, have and continue to restrict, inhibit and chill plaintiffs? religious expression because of its content and vieWpoint. 61. Defendants have no compelling interest in restricting plaintiffs' religious expression. 62. Defendants' actions thus, constitute a violation of plaintiffs? rights under the Free Speech Clause of the First Amendment to the United States Constitution as incorporated and applied to state action under the Fourteenth Amendment. Case Document 1 Filed 12/30/05 Page 18 of 22 PagelD 18 63. Each of the defendants has had and continues to have personal involvement in the violation of plaintiffs? rights under the Free Speech Clause, and each of the defendants has acted and continues to act individually and in concert to violate plaintiffs' rights under the Free Speech Clause. WHEREFORE, plaintiffs respectfully pray that the Court award plaintiffs damages and grant the equitable and legal relief set forth hereinafter in the prayer for relief. EIGHTH CLAIM 0F RELIEF Declaratory Judgment 64. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 65. Plaintiffs contend that defendants have obstructed and delayed their application for a special exception permit in violation of their federal and state constitutional and statutory rights. Defendants contend that their actions do not violate any of plaintiffs' constitutional or statutory rights. In addition, defendants contend that plaintiffs? require a Conditional Use Permit for the use of 117 Cuttermill Road as a school. Plaintiffs contend that the Code provision is unenforceable because the sole purpose of its ad0ption was to discriminate against plaintiff. 66. AccOrdingly, the parties' contradictory positions gives rise to an actual controversy that is ripe forjudicial determination in that the parties require declaratory relief in order to establish their rights and obligations, 67. By reason of the foregoing pursuant to 28 U.S.C. 2201, plaintiffs; are entitled to a declaration as follows: Defendants' change of law to require a Conditional Use Permit to run a school and religious center in the Village of Great Neck Estates is an unconstitutional Case ieemamsinertt mmwe?wewtimgfetnoldnizedrsagem 19 NINTH CLAIM 0F RELIEF Declaratory Judgment 68. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 69. Defendants' conduct violates the Village Zoning Code and SEQRA because neither the Code nor SEQRA permits a governmental body to use the provisions of law to delay and complicate proceedings to deny to citizens their lawful religious and constitutional rights. 70. To the extent that defendants' conduct is permitted by the Code or SEQRA, both violate the United States Constitution and RLUDPA. 71. Plaintiffs are entitled to a declaratory judgment that defendants have violated the Code and SEQRA or that the Code and SEQRA are unconstitutional as applied to the plaintiffs in this case. TENTH CLAIM 0F RELIEF Punitive Damages (Against Individual Defendants in Their Individual Capacities) 72. Plaintiffs repeat and reallege all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 73. Each of the defendants has acted and continues to act individually and in concert 20 Case Document 1 Filed 12/30/05 Page 20 of 22 PageID 20 abuse of their governmental powers; and To the extent that the Village Code permits defendants to require the Case Document 1 Filed 12/30/05 Page 21 of 22 PageID 21 to prevent plaintiffs from using 117 Cutterrnill Road for religious purposes, and each has been and continues to be motivated by malicious and discriminatory intent and purpose, and each has had and continues to have personal involvement in these discriminatory actions. 74. Accordingly, plaintiffs are entitled to punitive darnages in an amount to be proved at trial but in no event less that $18 million, against each of the individual defendants in their individual capacities. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray forjudgment as follows: That this Court issue an injunction restraining defendants from engaging in any further unconstitutional conduct and directing defendants to amend the Village code to remove the requirement for a Conditional Use Permit or if such permit is found Constitutional to view plaintiffs' application for the permit in a manner consistent with their constitutional obligations applicable when evaluating a permit application for a religious institution; That this Court issue an injunction restraining defendants from issuing unconstitutional summonses to plaintiff and conducting trials ignoring the State Law and Proceedure; That this Court appoint a special master, receiver or trustee to oversee defendants' conduct in the performance of their of?cial duties to insure that plaintiffs' rights are protected and the Court's orders are obeyed; That this Court award damages to plaintiffs for loss of use of the Property, damage to the plaintiffs? reputation, actual out of pocket damages for attorneys, engineers, architects, consultants, taxes, interest, penalties, and ?nes paid; That this Court award plaintiffs costs and expenses of this action, including 2i Case Document 1 Filed 12/30/05 Page 22 of 22 PageID 22 reasonable attorneys? fees, in accordance with 42 U.S.C. 1988 and other applicable law; That this Court adjudge, decree and declare the rights and other legal relations of the parties to the subject here in controversy, in order that such declarations shall have the force and effect of ?nal judgment; and That this Court retain jurisdiction of this matter for the purpose of enforcing the Court's orders. Demand for Jun Trial Plaintiffs hereby demand a trial byjury for all issues so triable in conformity with Rule 38(b) of the Federal Rules of Civil Procedure. Dated: Great Neck, New York December 30, 2005 By: ?32:7 @12ng . Bitterman, Esq. GB1180 Attorney for Plaintiffs 390 East Shore Road Great Neck, NY 11023 22