Yeshiva violates law, according to planners

By: Cara Latham
   ROOSEVELT — Contrary to a decision by a former zoning officer, an Orthodox Jewish school operating from a synagogue on Homstead Lane violates local law, according to the Planning Board.
   The board’s 6-1 decision Tuesday prompted the yeshiva’s attorney to say he will file an appeal in state Superior Court.
   "If this decision stands, then my client’s First Amendment rights have been violated, and I’m not going to let that happen," said Edward Liston.
   The yeshiva can file a court appeal, apply for a local variance or stop operations, according to board attorney Michele Donato.
   Former Zoning Officer Bob Francis decided in October that Yeshiva Me’On Hatorah, at Congregation Anshei Roosevelt’s synagogue, had not needed to apply for variances or get site plan approval before it began operating.
   The yeshiva, a school where Orthodox Jewish males 13 years and older study the Torah, is located in a residential zone on a lot of less than 2 acres — a size required by the current zoning ordinance for any religious use. Mr. Francis’ decision was based on an older ordinance in effect at the time the synagogue was built.
   The present borough ordinance makes houses of worship and related residences a conditional use, requiring a variance, and does not allow a private school, but allows a public school, in the zone.
   During the three-hour-plus hearing, overcrowded by residents, the yeshiva’s attorney, Mr. Liston, presented two witnesses.
   Rabbi Zevulun Charlop, dean at the Rabbi Isaac Elchanan Theological Seminary in New York, an affiliate of Yeshiva University, testified that because the students at the yeshiva are required to both study and pray three times a day and worship as they would in a synagogue, the yeshiva is considered to be a house of worship.
   "A synagogue may not be a yeshiva, but a yeshiva is also a synagogue," he said.
   Mr. Liston said that because a yeshiva is a synagogue, the First Amendment and The Religious Land Use and Institutionalized Persons Act —a federal law that prohibits government from placing substantial burden on the religious exercise of a person or religious assembly through land use laws — protects the yeshiva.
   "If you were to reverse your zoning officer’s opinion, that’s exactly what you’d be doing," Mr. Liston said. "You would be putting a substantial burden in violation of RLUIPA on Congregation Anshei Roosevelt and on the yeshiva because they are one."
   Planning Board Attorney Michele Donato said the local governmental regulation of the property is not "per say" a substantial burden under RLUIPA.
   Mr. Liston pointed out that the synagogue was built before the 2-acre zoning requirement and when a house of worship was a permitted use. It should continue to be permitted as a pre-existing nonconforming use, he said.
   But Ronald Gasiorowski, attorney for the Roosevelt Preservation Association, a local group that appealed Mr. Francis’ decision, said a house of worship is not a permitted use; rather a conditional use and does not meet zoning requirements. He added that the 50-plus students expected to come in the future would intensify the use even more.
   Residents urged the board to overturn Mr. Francis’s decision, and said the Jewish boys are outside walking on Homestead Lane all day and night.
   Homestead Lane resident Melissa Branco said cars and vans begin coming to the school at 7:20 a.m. and make about 40 to 50 round trips each day, and that it doesn’t shut its lights until about 1:30 a.m.
   "Life on Homestead Lane is not pleasant anymore," she said. "Please return to use the quiet, peaceful enjoyment of our homes."
   Ms. Donato advised the board that when Mr. Francis’ decision was made, he understood that only 12 boys were expected to study at the yeshiva and there was no residential use intended. She also indicated that the lease implies that two separate entities are housed in the building.
   Synagogue President Elly Shapiro testified that while she originally signed a lease with the yeshiva because of low membership, it has not since increased. The boys study at the synagogue, and in exchange, perform rabbinical services, and yeshiva members cannot serve on the synagogue’s board, she said.
   "How can you be considered one (yeshiva and synagogue) when there is a legal partition that is separating you?" asked Planning Board member Jaymie Kosa, in a reference to the lease.
   "I am troubled by the fact that the children are outside late at night, not in classes," Ms. Kosa added. "I don’t understand how that ties into the function of the use as a house of worship and a school."
   Planning Board member Lou Eskahoff cast the lone vote, with no comment, against overturning the original decision. Four board members recused themselves including Chairman Ralph Seligman, who lives within 200 feet of the property. Bob Dermody, who acknowledged living even closer to the synagogue, said he struggled before voting in favor of overturning the decision.
   Mr. Francis, who resigned his position, did not attend Tuesday’s hearing.
   The yeshiva and its landlord received a separate violation notice in May from Mr. Francis because the 12 students are living in the single-family house on Rochdale Avenue. An appeal from the yeshiva on the violation is scheduled for Sept. 26.