After more than two hours of volleyed legalese, a few pointed barbs, and questions and testimony from residents, including town supervisor Jon Kaiman, the Board of Zoning and Appeals (BZA) for the Village of Great Neck on June 5, voted unanimously to require that the applicant for a stand alone mikveh on Wood Road prepare an environmental impact statement (EIS) that would include an independent traffic study. The village, at the applicant's expense, would hire a traffic engineering consulting firm.

Village attorney Steven Limmer will draft a resolution spelling out the scope of the environmental potential impacts to be studied, which the board, at its next meeting in August, may approve.

The application, which was filed with the village last December, asked for a conditional use permit for a religious use as well as five variances which have now been reduced to three variances.

The applicant is Ohr Haemeth, the American Society for Torah Education for Latin America, which already operates a rabbinical school at 112 Steamboat Road abutting the properties under contract at 48, 50, and 52 Wood Road.

One of the attorneys for the applicant, Murray Honig, asked the board at the beginning of the meeting to clarify and narrow their concerns about the proposed project. The board has suggested that the applicant reconsider egress from Wood Road and instead utilize the entrance from Steamboat due to concerns about traffic. Mr. Honig emphasized that such an idea was not acceptable to his client stating that women entering through a Steamboat Road entrance passing by the rabbinical school would feel their privacy violated. He implied that this point was non-negotiable. He also warned that he would not be "intimidated" by the possibility of the board's requiring an environmental impact statement.

Steve Limmer quickly made it clear that the board would be only fulfilling their legal responsibility by requiring an EIS, which should spell out the "facts" in the case. Then Mr. Honig replied that the Wood Road egress desire by his client "was not in stone."

In order to fully appreciate the sub-text of these proceedings, it is vital to be aware of a federal law that has had a dramatic impact on zoning. Under the law, Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), governments are prohibited from imposing land use regulations that "unreasonably limit religious assemblies, institutions, or structures within a jurisdiction." The law goes on to state that governments may not enact or enforce any zoning regulation that "imposes a substantial burden on the religious exercise" of a person or religious institution unless there is a "compelling governmental interest" and such an interest must be addressed in the "least restrictive means of furthering that compelling governmental interest."

What the legal mumbo-jumbo means is that if zoning boards do not grant permission for an application brought by a religious group, the burden of proof is on the government to demonstrate that a compelling interest, such as public safety, would be jeopardized if permission were granted. In other words, the party that bears the "burden of proof" is at a disadvantage in court cases.

When this law was passed by Congress and signed by former President Bill Clinton in the waning days of his presidency, local leaders expressed concerns that the effect of the law might be pre-emptive due to the fact that legal expenses incurred by zoning boards might make them hesitant to challenge applications even when there was a valid and "compelling public interest, especially safety considerations."

From the time this application entered the public hearing arena, the potential for it to end up in court, if the applicant is not granted all their requests, was first hinted at by their lawyers in early meetings and then, hotly shouted out by one at the April hearing. The June meeting was tame by comparison, but it was clear that the board is proceeding gingerly in their deliberations and has not challenged the "need for privacy," the basis for "emergency mikvehs" or indeed the need for another mikveh facility in town or the uniqueness of this particular mikveh in that it is not sited with a synagogue, a more typical arrangement.

The public does not have the same constraints.

Elizabeth Allen spoke to several points. First, she pointed out that the law pertaining to religion and zoning "does not say that legitimate community concerns must be overridden in favor of any and all proposed religious uses." She also argued that Residence D is "just the fossilized remains of the housing and tiny storefronts that existed in the oldest part of Great Neck prior to the enactment of the zoning code in the 1930s...It is clear that the legislative intent of this village, as set forth in the abandonment of Business B and the enactment of Residence C two years ago, unequivocally demonstrates that this village believes that Resident C requirements are far more preferable, appealing and appropriate than the old, outmoded, crowded and grandfathered areas prior to the dawn of any zoning laws." She also testified that she has been approached by Orthodox women who object to the facility, but who do not feel comfortable speaking openly about their concerns that this mikveh will not be a "quiet, modest place" but rather a "huge, ostentatious, and wildly discordant building...offending the sensibilities" of those it is intended to serve. Further, she noted that these women told her that a "so-called emergency mikveh is practically unheard of and was even the subject of some unprintable merriment." She added that as a 21st century-woman, she was "hugely insulted by the notion that women are somehow unclean and need to be separated and improved somehow before they may rejoin the company of...men" and that symbolically she would be reminded of this practice every time she passed the building. She also challenged whether such a facility would and should be covered by the law since it has no membership.

Town of North Hempstead Supervisor Jon Kaiman said that he was following the proceedings as a village resident, as well as town supervisor. His main point was to question the inclusion of a two-family residence into an institution, the mikveh building, saying that it was asking the board to "go beyond the 4 corners of the code." He said that accommodating a mikveh attendant and rabbi might be accomplished better by separate housing.

Jean Pierce noted that all of Great Neck residents' taxes are affected by taking such properties off the tax rolls for what she refers to as a "commercial venture." Proponents have argued that mikvehs are not self-sustaining, profitable establishments.

Another resident from the Plaza agreed with Ms. Pierce that there are community concerns about taking properties off the tax rolls for such a purpose.

Joan Wheeler, who lives in the neighborhood, noted that she would have concerns about the safety of a Steamboat Road egress as well and also questioned the advisability of establishing a precedent-setting two-family residence in a single-family zone.

Questions were also raised about the water usage and drainage.

The board will meet again on August 7.

The proposed 6,157 square foot building would contain three mikveh pools, 12 showers/toilets and dressing rooms, a bridal suite, a "beautification" room, a laundry room and a reception area on the main floor. Only married Jewish women or bridal parties would be allowed to use the facility. It would not be used for conversions or for men under any circumstances.

Two residential apartments, one with 2 bedrooms and one with one bedroom, would be located on the second floor of the building. The square footage of the main floor would be 4,158 and the square footage of the second floor would be 1,999.

The residential two-family apartments would be for a female attendant for the mikveh and for a rabbi. The application states that a live-in attendant is required so "emergency mikvehs" may be available 24/7. They also state that a supervising rabbi needs to be available on site as well.

The mikveh, along with a 20-space parking lot, would be sited adjacent to the Great Neck Park District's tennis courts on Wood Road.

(Editor's note: Related articles regarding the mikveh proposal are available online in the Great Neck Record archives for March 28 and April 18 at www.antonnews.com.)