Ginsberg v. Yeshiva of Far Rockaway

Benjamin, J. (dissenting).

In this action to enjoin violation of a covenant limiting the use of each of six plots of land to *340‘ ‘ one private residence, to cost not less than $5,000 ’ ’ and barring the erection or maintenance on any of the plots of ‘ any apartment buildings, boarding houses, stores, business houses, barns or stables ’ ’, the defendant appeals from a judgment granting such injunction and from an order denying its motions to set aside the decision after trial.

The six plots are located three on each side of a short dead-end street, Virginia Street, which runs at right angles off Empire Avenue, a well-traveled street. The plaintiffs are the owners and occupants of a one-family 14-room house on one corner of Empire Avenue and Virginia Street which they use as their family home, and the plaintiff husband, a urologist, also uses part for his office, the entrance to the office being on Empire Avenue and the main entrance to the house being on Virginia Street. The house had been owned by the plaintiff doctor’s father, who had lived and practiced there from 1932 until his death in 1965. In 1964 the plaintiff doctor began to practice at the same premises, paying rent therefor first to his father and later to his mother until 1969, when his mother transferred the house to the plaintiffs.

In or about 1963, an orthodox synagogue purchased non-restricted property adjacent to the plaintiffs’ plot and the two other restricted plots adjoining it on the same side of Virginia Street and built a synagogue on the property. It also purchased the vacant restricted lot adjacent to the plaintiffs’ and paved and lighted it and used it as a parking lot for those using the synagogue. In August, 1971, the defendant yeshiva, concededly with knowledge of the restrictive covenant, purchased the home and plot at the inner end of Virginia Street on the side opposite the plaintiffs’ home and began soon after to operate a full-time ■religious school in the one-family residence it had purchased. In or about March, 1972, after the instant action was commenced, the defendant purchased the vacant plot alongside the one it owns and it plans to expand its school.

The issue raised in this appeal is whether the State power may be invoked by way of injunction against the defendant yeshiva to prevent it from using its premises, which are subject to the above-mentioned covenant restricting them to one-family residential use, to operate a religious school thereon. We believe such a use of State power violates the constitutionally protected status religious structures enjoy under the First Amendment made applicable to the States by the Fourteenth Amendment. I therefore think the judgment and order appealed *341from should be reversed and that judgment should be granted in favor of the defendant.

In our State the question of the impact of the constitutional guarantees of the free exercise of religion and enjoyment of religious profession (N. Y. Const., art. I, § 3) on zoning ordinances limiting the use of real property in a designated area to residential use only has been considered in several cases. In those cases it has been held ‘1 that religions structures cannot be excluded, directly or indirectly, from residential zones ” (Matter of Westchester Reform Temple v. Brown, 22 N Y 2d 488, 496). In that case Judge Keating, speaking for a unanimous court said (p. 496): “ We have said that factors such as potential traffic hazards, effects on property values and noise and decreased enjoyment of neighboring properties cannot justify the exclusion of such structures.”

The decision in Brown cited with approval Matter of Community Synagogue v. Bates (1 N Y 2d 445), which had ruled that the zoning power of the Village of Sands Point did not authorize it to limit the erection or use of structures for public worship and strictly religious uses. Brown also cited and relied on Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton (1 N Y 2d 508), which involved an effort by the petitioning diocese to obtain permission to erect a church and parochial school with necessary accessory uses on certain property which was located in an area zoned for residential use. The respondent Town Planning Board and Board of Appeals refused permission because (1) the locale was ‘ ‘ strictly residential in character ”, (2) “ churches and schools should be built in areas where future residential development could accommodate itself to the church or school ” and (3) “ good planning requires the maintenance of larger and more expensive homes which bear higher assessed values ” (p. 517).

In rejecting these grounds and annulling.the decisions of the respondents, the Court of Appeals, after noting that it is well established that a zoning ordinance which wholly excludes a church or synagogue from any residential district “is stricken on the ground that it bears no substantial relation to the public health, safety, morals, peace or general welfare of the community ” (p. 522), concluded that the decisions of the respondents denying the petitioner permission to build a church and parochial school on its property “ bear no substantial relation to the promotion of the public health, safety, morals or general welfare of the community ” and must therefore be annulled (p. 526; emphasis in original). The court also said (p. 526): “ Thus *342church and school and accessory uses are, in themselves, clearly in furtherance of the public morals and general welfare. The church is the teacher and guardian of morals (State ex rel. Synod of Ohio v. Joseph, 139 Ohio St. 229, supra), and an educational institution, whose curriculum complies with the state law, is considered an aid to the general welfare ’ (Archbishop of Oregon v. Baher, 140 Ore. 600, 613, supra). These proposed structures will not interfere with the public health, nor can they be said to be a danger to the public peace or safety; if they were, the ordinance would not have permitted their location in the district.”

In the instant case we are dealing not with a synagogue but with an all-day religious school. That such a school constitutes an integral part of the religious mission of its sponsors and is therefore an exercise of religion protected by the State and Federal Constitutions is made clear in Lemon v. Kurtzman (403 U. S. 602, 616), where Chief Justice Btjbgeb, speaking for the court said, parochial schools involve substantial religious activity and purpose.”

Nor in this ease are we dealing with the constitutional validity of an exercise of the police power based upon a local legislative determination as to possible damage to the public health and welfare resulting from permittting a structure to be used for religious purposes to be located in an area reserved for residential use. Bather we are dealing with a demand by an owner of land subject to a restrictive covenant that the covenant be enforced against other land made subject to that covenant by a previous owner. While the plaintiffs seeking the injunction stand primarily on the letter of their covenant, they do by their proof seek to establish that the operation of the defendant’s school does somewhat inconvenience them in their use of their premises. Plaintiffs make no claim that the public welfare will be adversely affected by the operation of the defendant’s religious school. The trial court found that the value of the plaintiffs’ premises will be adversely affected by the presence of groups of students. But such a claim of inconvenience and possible adverse effect on the value of the plaintiffs’ premises, a conclusion not supported by any proof in the record, can hardly be given more weight in the balance against the preferred position given to the free exercise of religion by our Constitution than our Court of Appeals gave in the Diocese of Rochester case (1 N Y 2d 508, supra) to a legislative finding that the public welfare will be disserved by the erection of a church and religious school in an area reserved for residential use.

*343It might be argued that we are faced here with a simple question of enforcing a private contract between private parties arid hence the Fourteenth Amendment which is limited to State action cannot serve to raise the First Amendment issue of free exercise of religion. Shelley v. Kraemer (334 U. S. 1) and its progeny, Hurd v. Hodge (334 U. S. 24) and Barrows v. Jackson (346 U. S. 249), dispose of that contention. Shelley established the doctrine that State court enforcement of a racially discriminatory restrictive covenant is State action subject to the Fourteenth Amendment, and any contention that Shelley is limited to matters of racial and even religious discrimination falls before Marsh v. Alabama (326 U. S. 501), where the Supreme Court of the United States struck down an effort to use State power to compel compliance with a ban by a privately-owned town against distribution of religious literature on its streets, declaring it a violation of the First and Fourteenth Amendments and saying (p. 509): “ When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. ’ ’

The foregoing authorities require us to reverse the judgment appealed from. Nor does Evangelical Lutheran Church v. Sahlem (254 N. Y. 161), cited and relied on by the plaintiffs, compel a contrary conclusion. That case was decided in 1930, long before the decisions in Marsh v. Alabama and Shelley v. Kraemer (supra), expanding the scope of the Fourteenth Amendment to the First Amendment guarantee of free exercise of religion and declaring State court enforcement of private agreements to be State action subject to the Fourteenth Amendment. Further, the issue of the constitutionality of a ruling against the plaintiff church was not raised in Sahlem. In our view the doctrine established in Sahlem no longer has application to the case before us.

Gtulotta, P. J., and Cohalan, J., concur with Latham, J.; Benjamin, J., dissents and votes to reverse and to grant judgment in favor of defendant, with an opinion, in which Mundeb, J., concurs..

Judgment of the Supreme Court, Queens County, dated July 27,1973, and order of the same court, dated September 11, 1973, affirmed, with one bill of costs.