Attorney

Harris Beach Murtha

Attorneys at Law

Albany, NY

This letter, dated May 6, is from a law firm representing the Town of Foresburgh in its case with Lost Lake Holdings, LLC and is addressed to New York State Attorney General Letitia James. It was sent to the Democrat for publication.

To the editor:

I write on behalf of the Town of Forestburgh in response to your May 5, 2025 letter to U.S. Attorney Jay Clayton regarding the federal litigation captioned Lost Lake Holdings, LLC v. Town of Forestburgh, No. 7:22-cv-10656 (S.D.N.Y.), and related land use matters in the Town. 

While your letter offers strong policy commentary on the importance of religious liberty and housing non-discrimination ­— principles with which the Town firmly agrees — it unfortunately relies on characterizations of the Town’s actions that are inaccurate or incomplete concerning the Town’s zoning laws and Local Law 3 of 2023. 

In particular, the letter appears to accept as fact the plaintiffs’ unproven allegations in ongoing litigation and draws legal conclusions from them without reference to the public record or the Town Code’s actual text. 

The record demonstrates that the Town’s zoning laws treat religious and secular uses comparably, and that the Town has consistently taken steps to ensure its land use regulations comply with constitutional and statutory requirements. 

To clarify, Local Law 3 of 2023 does not exclude religious uses from any zoning district. Places of worship are expressly permitted in every zoning district in Forestburgh, making Forestburgh one of only two towns in Sullivan County that allows religious uses in every zoning district. 

The zoning code imposes lot size and setback requirements on such uses that are comparable to those applicable to other institutional and high-occupancy uses, such as schools, hotels, and day care centers. In addition, the Town’s Code provides automatic relief from bulk regulations for preexisting lots and includes procedures for area variances, ensuring that even undeveloped or smaller lots may be lawfully used for religious purposes. 

These points are explained in detail in the Town’s April 29, 2024 letter to your Office (attached for reference), which responded to the April 19, 2024 letter from your Chief Deputy Attorney General for Regional Affairs. 

Moreover, the Town has shown a willingness to revisit its zoning provisions to further accommodate religious uses. In June 2024, the Town Board held a public hearing on a proposed amendment that would have reduced lot area requirements for places of worship—a measure specifically intended to liberalize the zoning code and provide additional flexibility for religious institutions.  This contradicts the narrative that the Town has acted to restrict religious uses. 

Yet the very developer whose allegations form the basis of your letter, Lost Lake Holdings, LLC (LLH), strongly opposed the amendment—even though it would have resulted in less restrictive zoning for religious institutions. That opposition speaks volumes. If the Town were in fact pursuing a discriminatory agenda to exclude religious uses, it defies logic that the affected developer would resist efforts to make the zoning code less restrictive. Based on LLH and its supporters’ opposition, the Town Board did not proceed with the amendment.  

We are also compelled to address one specific issue raised in your letter—selective references to email communications by an individual now serving as a Planning Board member that have been cited as evidence of discriminatory animus. 

Your letter cites language from a 2015 email as evidence that the Town has “dug in its heels” on discriminatory grounds. That email, written nearly five years before LLH acquired the property, was authored by a private citizen who did not serve on any municipal board or commission at the time. 

The email was written during a period of intense public scrutiny following a well-publicized fraud and election tampering scandal in the neighboring Village of Bloomingburg, which culminated in the developer’s federal conviction. 

We respectfully submit that a single email—written nearly five years before LLH acquired the Resort Project and by someone acting entirely in a personal capacity—cannot reasonably be read to reflect discriminatory municipal policy—particularly given its age, context, and lack of any connection to LLH or the Lost Lake Resort project.  

These communications have been taken out of context and do not reflect the actions or official position of the Town Board, which is the sole body responsible for approving or modifying the conditions applicable to the Lost Lake project. As explained in detail in the Town’s federal court filings (which the Town encourages you to also review), the cited individual has no decision-making authority over the project and has never taken official action on it. 

The Town Board itself has extended an open invitation to the developer to seek modifications to project conditions, and no Town Board member has ever expressed hostility toward such an application. We respectfully submit that the record does not support the suggestion that the Town has “dug in its heels” on discriminatory grounds. 

Against this backdrop, it is important to correct one final misapprehension in your letter.  Lost Lake Holdings, LLC is a private real estate developer, not a religious organization. The Town categorically denies that any of its land use actions were based on the religious identity of the developer or potential homebuyers. 

While the Town is mindful not to engage on the merits of the case in the ongoing litigation beyond correcting public mischaracterizations, it is important to reiterate that zoning laws are not unconstitutional merely because the applicant—or its supporters—invoke religious or cultural affiliations. 

We recognize the important role your Office plays in protecting civil rights and appreciate your attention to issues of public concern. At the same time, we respectfully ask that, in the interest of fairness, the Town be afforded the opportunity for its perspective to be fully considered before conclusions are drawn based on contested allegations. 

The Town is fully committed to complying with all applicable laws and welcomes constructive dialogue with your Office to ensure that its policies reflect both legal integrity and the values of inclusivity. 

Please find enclosed the Town’s April 29, 2024 response and the prior April 19, 2024 letter from your Office. If you or your staff have further questions, I remain available to discuss.