Home > Attorney's Grounds for Permit

May 27, 2004

(Via Telefax #716-466-3103 and First Class Mail)

Village of Angelica Board of Trustees
79 Center Street
P.O. Box 158
Angelica, New York 14709

Re: Mr. and Mrs. Steven Voith
Village Ordinance §30.1 – Animal Permit

Ladies and Gentlemen:

The following is submitted in support of Steven and Linda Voith’s application for a special use permit (“animal permit”) pursuant to Village Ordinance §30.1. (“Section 30.1”).

LEGAL BASIS FOR PERMIT

On October 10, 2001, we forwarded a letter to Karen Reynolds, the Deputy Village Clerk, setting forth the legal basis for the Voiths’ application for an animal permit. At this time, we would like to highlight the main points of that letter.

1. On its face, Section 30.1 is insufficient. The requirement that an applicant for an animal permit acquire the consent, by way of signatures, of “all contiguous neighbors” is not set forth in Section 30.1 or on the application for the animal permit. Instead, this requirement was only imposed by letters sent to the Voiths of August 21 and 28, 2001, after the Voiths’ application has been rejected.

Any ordinance must specifically express the conditions which are required to grant a special use permit. N.Y. Village Law §7-725-b; KENNETH YOUNG, Anderson’s American Law of Zoning , §§21.11, 21.30 (4th Edition). Section 30.1 does not express any conditions for granting, or denying, an animal permit. Therefore, as a matter of law, it is insufficient.

2. The consent requirement is also an unconstitutional delegation of the Village’s zoning power. Any consent requirement which subjects an applicant to the whim of too small a number of property owners, so that one Village taxpayer is given the absolute power to deny the application, is objectionable and illegal. Brunacini v. Loomis, 177 N.Y.S.2d 954 (1958); Anderson’s American Law of Zoning, at §21.15. Further, generalized complaints or community opposition may not form the basis for the denial of a special permit. Church of Jesus Christ of Latter-Day Saints v, Planning Board of the Town of Clifton Park, 687 N.Y.S.2d 794 (3d Dept. 1999).

For the reasons set forth above, the consent requirement that the Village applied to Section 30.1 is objectionable, insufficient and illegal.

BACKGROUND ON THE KRISHNA CONSCIOUSNESS MOVEMENT

Krishna Consciousness falls under the broad theological umbrella of the Vaishnava tradition of Bhakti Hinduism, which was formalized in the ninth century in Southern India. The International Society for Krishna Consciousness, or ISKON, is a not-for-profit New York Corporation, one of many world-wide Krishna Consciousness organizations. It was founded in the mid-1960s by A.C. Bhaktivedanta Swami Prabhupada, at the behest of his Indian Spiritual Master. ISKON v. Barber, 650 F.2d 430, 433 (2d Cir. 1981).

The canonical sources for the Hindu faith are the Vedic scriptures. All practicing Hindus believe in their authenticity. The Veda consists of two parts: Samhita, which deals with ritual and contains the incantations directed to the Vedic deities, and the Upanishads, which is the metaphysical interpretation of the ritualistic scripture. These have been likened to the Christian Bible or the Moslem Koran. Secondary texts and commentaries, known as smirti, include the Bhagavad-gita and Srimad Bhagavatam. ISKON v. Barber, 650 F.2d at 433.

THE VOITHS’ RELIGION

The Voiths are members of the Reform Hare Krishna Movement, which is a branch of the Vaishnava tradition of Bhakti Hinduism. Their Krishna Bhakti Danta Cow Protection Society promotes the importance of the cow and ox in the Vedic socio-economic and religious system of Varnashrama. The Voiths’ religious beliefs as they relate to cows and cow protection are summarized below.

• The Vedas describe that God has many names according to His pastimes and activities. Krishna is a name for God and means, “He who is all attractive.” Of all animals, Krishna is fond of cows. Therefore, He is also known as Govinda, or “the friend and protector of the cows.”

Lord Krishna as Govinda is more inclined to the Brahmins and the cows, indicating thereby that human prosperity depends more on these two items namely Braminical Culture and cow protection. Lord Krishna is never satisfied where these are lacking. (note: Brahminical culture denotes a society which is guided by principles of God Consciousness).

--Shrimad Bhagavatam 1.8.21

• The cow and ox are considered very holy, symbolizing virtuous qualities, such as generosity in giving milk, charity and compassion. The ox symbolizes Dharma, or the code of ethics. They are traditionally used to till the fields to provided diverse kind of grain for all creatures of the earth.

The bull is the emblem of the moral principle, and the cow is the representative of the earth. When the bull and the cow are in a joyful mood, it is to be understood that the people of the world are also in a joyful mood. The reason is that the bull helps with the production of grains in the agricultural field, and the cow delivers milk, the miracle of aggregate food values. The human society, therefore, maintains these two important animals very carefully…
--Srimad Bhagavatam §3.2.29.

• The protection of cows according to Hindu scripture (Vedas, Upanishad, Bhagavad-gita, Shrimad Bhagavatam) is the central duty of all mankind.

By His personal example Lord Krishna wanted to teach us the value of protecting cows…Therefore God’s gifted professions for mankind are agriculture and cow protection.

--Light of the Bhagavata, Verse 9.

It is the duty of every householder to maintain cows as household paraphernalia.”
--Shrimad Bhagavatam 1.17.3

• No “sin” is greater to a Hindu then to eat the flesh of the holy cow or ox. The killing of a cow or an ox is equivalent to taking the life of a human being as per the Hindu Holy Scriptures and deserves the same punishment.

In the glorious days…The brahmanas, the cows, the women, the children and the old men were properly given protection…The killing of theses innocent creatures is totally forbidden, because even by insulting them one loses one’s duration of life.
--Shrimad Bhagavatam 1.21.3

• Cow’s milk and other by-products are used in all sacramental practices. There can be no complete Yajna, or worship ceremony to purify the soul, without cows. They provide the essential ingredient for the ceremony, milk. The milk is later made into yogurt, ghee, and cheese, which are offered to Krishna.

Human beings are provided with food grains, vegetables, fruits and milk by the mercy of the Lord, but it is the duty of human beings to acknowledge the mercy of the Lord. As a matter of gratitude, they should feel obliged to the Lord for their supply of foodstuff, and they must first offer Him food in sacrament and then partake of the remnants.”

---Srimad Bhagavatam 3.5.49

• It is believed that the cow is capable of cleansing one of every kind of sin and disease. It is believed that cows can cure not only diseases of the body and mind, but also redirect life towards higher spiritual values.

Where wealth and strength are not engaged in the advancement of Brahminical culture, God consciousness and cow protection, the state and home are surely doomed. If we want peace and prosperity in the world…every state and every home must endeavor to advance the cause of Brahminical culture for self purification, God Consciousness for self realization and cow protection for getting sufficient milk and the best food to continue a perfect civilization.
---Srimad Bhagavatam

THE VOITHS ARE GENUINE AND SINCERE FOLLOWERS OF THEIR RELIGION

The Voith family maintains one milk cow, two yearling oxen, one calf and one goat as part of their mission to provide a practical example of cow protection and animal husbandry described in Vedic scriptures. In their religion, the cow and the oxen are necessary participants in the worship of their Supreme Lord, Sri Krishna. For example, the Voiths’ milk cow produces all of the foods essential for their religious worship. The Voiths also consume the cow’s milk, and use it to produce ghee, yogurt and cheese. Their oxen are used to assist the family in their agricultural pursuits, which they believe is a noble profession. For example, they are yoke-trained as draft animals to move loads on and off the family’s farm.

Without question, the Voiths practice their faith, as members of the Krishna Consciousness Movement, in a genuine and sincere manner. Their cow and oxen are of paramount importance to the daily practice of their faith. As such, these animals are more than just “farm animals” as that term is contemplated by Section 30.1. They are members of the Voith family.

THE COURTS HAVE HELD THAT THE KRISHNA CONSCIOUSNESS MOVEMENT IS A RELIGION

The Second Circuit Court of Appeals has recognized the beliefs of the American Krishna Consciousness Movement as a religion. ISKON v. Barber, 650 F.2d at 441. In that case, the Court paid particular attention to the sincerity of the Krishna followers in practicing their religious rituals, and the centrality of these rituals to the theology of the religion in question. ISKON v. Barber, 650 F.2d at 441. As set forth above, the Voiths demonstrate sincerity in their religious practices, and that these practices are central to their faith.

APPLICABLE STANDARD FOR JUDICIAL REVIEW OF SECTION 30.1

The plaintiffs in ISKON v. Barber wanted to practice the ritual of Sankirtan at the New York State Fair. Sankirtan combines the broadcasting of religious beliefs with the solicitation of donations. They were confronted with a State Law attempting to ban all religious solicitation, including Sankirtan, at the Fair. The Court measured the State’s ban with the Supreme Court’s well-established test for a law which imposes a burden on the good faith observance of religious beliefs. ISKON v. Barber, 650 F.2d at 446. In such a case, the State must have a compelling governmental interest for the law, and there must be no less restrictive means available to impose its law. Sherbert v. Verner, 374 U.S. 398, 403-307 (1963). The Court held that there was a compelling interest in preventing fraud, but that confining Krishna followers to a booth, and effectively prohibiting Sankirtan, was not the least restrictive way to impose the law. Therefore, the Court struck down the solicitation ban as unconstitutional. ISKON v. Barber, 650 F.2d at 446-447.

THERE IS NO COMPELLING GOVERNMENTAL INTEREST FOR SECTION 30.1

In our case, there is no question that the Voiths are engaged in the daily practice of their religion. Therefore, the Village must assert a compelling governmental interest for imposing Section 30.1 on the Voiths, and do so in the least restrictive way available. At this point, the Village has not asserted any reason, much less a compelling one, for that ordinance.

We assume the governmental interest for Section 30.1 is to protect the public’s health. However, there is absolutely no evidence that the public’s health has been placed at risk by the Voiths’ cows. Not one person has taken ill, no property has been destroyed, and no lives are at danger, as a result of these animals.

It is peculiar that Janet Aylor, a Village resident, signed each and every accusatory instrument brought by the Village against Steven Voith. Ms. Aylor was complaining about the Voiths single cow and two oxen, yet she has lived next door to a farm for twenty years that houses ten to forty beef cows and twenty to forty dairy goats! There is no evidence that Ms. Aylor’s health was placed at risk by any animals, ever. The fact is that none of the scores of animals maintained within Village limits have placed the public’s health at risk. If they did, the Village would require that all animals be maintained outside its limits.

The Voiths have also agreed to clean up any cow droppings their cows or oxen make on Village streets. (As you know, the Village does not require Amish people, whose horses commonly leave droppings on Village streets, to do the same). Further, Mrs. Voith has completed an 80-hour course at the Cornell Cooperative Extension, and is certified in the proper procedures for composting manure. Therefore, there should be no question that the public’s health is not at risk from the Voiths’ cows.

Even if a Court finds that the Village has a compelling interest to protect the public’s health, the Village has not exercised the least restrictive means possible for imposing Section 30.1. It has simply imposed a ban on all animals within Village limits. For this reason, Village Ordinance §30.1 is unconstitutional.

THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000

The Religious Land Use and Institutionalized Persons Act of 2000, Public Law 106-274 (“RLUIPA”) was recently enacted. It prohibits any government from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person unless the government demonstrates that imposition of the burden is in furtherance of a compelling interest, and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §2000cc. RLUIPA was passed expressly to prevent governments from using land use regulations in a discriminatory manner against religious activity.

In applying Section 30.1 to the Voiths, the Village has imposed a substantial burden on their religious exercise. For this reason, the Village has violated RLUIPA.

CONCLUSION

We respectfully request that the Village Board grant the Voiths’ application for an animal permit under Village Ordinance §30.1. We also request that Section 30.1 be revised so it is legal. Finally, we request that the Village refrain from further hindrance of the Voiths’ federal and state constitutional rights, their rights under RLUIPA, and the free exercise of their religion.

Thank you for your time and consideration.

Very truly yours,
O'HARA & O'CONNELL

SJC/pmg By: Stephen J. Clar
Enclosure

cc: Mr. David Pullen, Esq. (via telefax #585-567-2222)
Stephen and Linda Voith (via telefax #716-466-3550)