OPINION & ORDER
Plaintiffs bring challenges to certain zoning and environmental ordinances enacted by Defendant Village of Pomona (the “Village”), alleging they are unlawful under the First and Fourteenth Amendments of the United States Constitution, the Religious Land Use and Institutionalized Persons Aet of 2000 (“RLUIPA”), 42
I. Background
The Court assumes familiarity with the basic allegations of Plaintiffs’ Second Amended Complaint, (Second Am. Compl. (“SAC”) (Dkt. No. 27)), as discussed in the Court’s January 7, 2013 Opinion and Order, (Dkt. No. 53.) See Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,
A Factual Background
1. The Parties
Plaintiffs are a corporation and individuals affiliated with the Orthodox Jewish community, including various sects of the Hasidic community, all of whom allege an interest in the construction of a rabbinical college on the Subject Property., (Pis.’ Rule 56.1 Statement of Material Facts in Supp. of Pis.’ Mot. for Summ. J. (“Pis.’ 56.1”) ¶¶ 1, 88, 90, 92, 94-95, 97, 525 (Dkt. No. 139).) The Congregation, officially “the Rabbinical College of Tartikov, Inc.,” the owner of the Subject Property, is a reli
2. Rabbinical Colleges
According to Orthodox Jewish belief, Orthodox Jews are not permitted to resolve conflicts in the secular court system, but rather must have their conflicts.adjudicated in rabbinical courts, before rabbinical judges applying Jewish law. (Pis.’ 56.1 ¶¶49, 52.) For this reason, Orthodox Jews require rabbinical courts sufficiently proximate to their homes. (See id. ¶ 51.) However, there are very few rabbinical judges, and very few rabbinical courts, in the United States today, and those courts are overburdened. (See id. ¶¶ 50-51, 59-61.) ■
In response to.th|s growing need, the Congregation’s proposed rabbinical college would enroll students, at no charge, who have completed a “high school level program in the Talmud” and who are deemed qualified by M. Babad, some of whom have already received offers of admission. (Id. ¶¶ 550, 552-53, 555, 558; Defs.’ Counter 56.1 ¶ 555 (citing Decl. of Paul Savad in Supp. of Pis.’ Mot. for Summ. J. (“Savad Decl.”) Ex. 29 (M. Babad Tr.) 133 (Dkt. No. 155)); (Defs.’ 56.1 ¶ 51). The rabbinical college would therefore have no entrance examination, written examination, or written criteria for admission. (Pis.’ 56.1 ¶ 551; Defs.’ 56.1 W37, 39-40.) For 13 to 15 years, between 6:00 a.m. and 10:30 p.m. on Sunday through Thursday and in study sessions on Friday and Saturday, the students would study the four books, or “divisions,” of the Shulchan Aruch, a compellation of Jewish laws of the Orthodox -Hasidic tradition. (See Pis.’ 56.1 ¶¶ 36-37, 65-66, 68, 528, 531, 537.) Of central importance here, Plaintiffs “believe that Jewish men are religiously obligated to marry at a young age and have large families,” (id. ¶ 38), that “Judaism ... directs [them] to dwell among a community that is directed to the Torah,” (id. ¶ 44), arid that “Jewish males [must] ... learn the Torah day and night,” (id. ¶ 46). Accordingly, . Plaintiffs believe that students of the proposed rabbinical college must
While there are three other schools that currently train rabbinical judges in the area, namely Kollel Beíz and Mechón L’Horoya near Monsey, N.Y. and Kollel Beth Yechiel Mechil of Tartikov in Brooklyn, NY, the Congregation’s proposed rabbinical college is the only one that offers an immersive Torah Community, which enables the college to train full-time rabbinical judges. (See id. ¶¶ 565, (citing, inter alia, Savad Ex. 34 (Steven Resnicoff Dep. Tr.) 19-22), 568-71; Defs.’ Counter 56.1 ¶ 570-71.) Plaintiffs also contend that Kollel Belz and Mechón L’Horoya “only teach certain sections of the Shulchan Aruch,” that Kollel Beth Yechiel Mechil of Tartikov “does not have the same program” as the proposed rabbinical college, and that none of the three schools has on-campus housing essential to “the Torah Community environment that Plaintiffs believe” is necessary for the course of study to be offered and “essential to [the] exercise their religious belieffs].” (See Pis.’ 56.1 ¶¶ 563, 568-571; Pis.’ Counter 56.1 ¶¶ 55, 58.)
As of the date of this Opinion and Order, the Congregation has not yet provided a formal plan for, or submitted an application to the Village seeking to construct, their proposed rabbinical college; only a “preliminary concept plan” exists. (Defs.’ 56.1 ¶¶ 19, 22; Pis.’ Counter 56.1 ¶22.) Additionally, the proposed curriculum at this point consists only of a document prepared at Tauber’s request (he thought that his “ ‘counsel wanted to see [the curriculum] in writing,’ ”) by M. Menczer, which only includes class names and “reflects the religious source of the studies,” namely the
3. Chronology of the Challenged Laws
The Village, incorporated in 1967, adopted a master plan in 1974 which it updated in 1997 “to maintain the low density residential character of the Village” in response to rapid growth. (Defs.’ 56.1 ¶¶ 1, 73-76 (internal quotation marks omitted) (quoting Aff. of Doris Ulman (“Ulman Aff.”) Ex. 17 (1997 Master Plan Update) 17 (Dkt. No. 145)).) Around the same time, in May 1996, the Village Attorney, thén Ruben Ortenberg, advised residents to contact the Town of Ramapo to object to the expansion of an Orthodox Hasidic school, whose development the Village had challenged in court and had been “involved [with] for two years” at the time. (See Pis.’ 56.1 ¶ 376; Savad Decl. Ex. 187 (May 20, 1996 Board of Trustees meeting minutes), at 7-8.)
At a December 1999 Village Planning Board meeting, Yeshiva Spring Valley, in an “informal appearance,” laid out plans to build a Yeshiva on the Subject Property. (Id. ¶ 121; Defs.’ Counter 56.1 ¶ 121.)
On January 22, 2001, following a public hearing, the Board of Trustees adopted Local Law 1 of 2001. (Defs.’ 56.1 ¶¶ 96, 98.) Local Law 1, in relevant part, defined educational institution, for the first time, as “[a]ny school or other organization or institution conducting a regularly scheduled comprehensive curriculum of academic and/or alternative vocational instruction similar to that furnished by kindergartens, primary[,] or second schools and operating under the Education Law of New York State, arid duly licensed by the State of New York,” and subjected such institutions to certain restrictions under the special permit approval process, including minimum net lot area, maximum
In March of the same year, then-Mayor Herbert Marshall (“Mayor Marshall”) emphasized in a letter that nothing could be done to prevent the construction of a group home facility in the Village and that it “must be treated no different[ly] than any other residences or planned residences within the community” because residents “simply do not have the right to choose who [their] neighbors will be.” (Savad Decl. Ex. 184 (Open Letter from Mayor Marshall March 5, 2001).) Additionally, in May 2002, all but one Village Trustee expressed no objection to the concept of Barr Laboratories’ constructing an office building with parking in the Village. (Savad Decl. Ex. 176 (May 21, 2002 Board of Trustees meeting minutes) 3.)
Starting in 2003, Village. Attorney Doris Ulman (“Ulman”), who was appointed in July of that year, “began to review the Village laws” and recommended that further amendments be made due to “deficiencies . or inaccuracies in the laws.” (Defs.-’ 56.1 ¶ 106-07.)
Subsequently, on August 17, 2004, the same year in which the Village denied Yeshiva Spring Valley tax exempt status for the first time, (Pis.’ 56.1 VF 324), the Congregation purchased the Subject Property from Yeshiva Spring Valley, (Defs.’ 56.1 ¶ 17.)
On September 7, 2004, Ulman presented the Board of Trustees with her recommendations for amendments to the zoning law pertaining to educational institutions, which addressed removing the half-acre-per-student lot area requirement, adding a provision allowing dormitories, clarifying the definition of educational institution, and removing the requirement that educational institutions be on a state or county road. (Defs.’ 56,1 ¶¶ 110, 112; Pis.’ Counter 56.1 ¶ 113.) Subsequently, on September 27, 2004, following a public hearing, the Board of Trustees adopted Local Law 5 of 2004, (Defs.’ 56.1 ¶¶ 114, 116), which, in relevant part, redefined- “educational institution” as “[a]ny private or religious elementary, junior high or high school,- college, graduate!,] or post-graduate school conducting a full-time - curriculum of instruction .., accredited by the New York State Education Department or similar recognized accrediting agency,” and amended the minimum lot area, frontage, access, setback, and screening guidelines, Local Law 5 of 2004, as codified at Village Code § 130-4. (See also Defs’ 56.1 ¶¶ 105, 122; Ulman Aff, Exs. 2 (Local Law 5 of 2004), 7 (Village Code § 130-4).)
Local Law 5 also addressed dormitories, providing that “[a] dormitory is permitted as an accessory use to an educational use and that there shall be not more than one dormitory building on a lot,” Local Law 5 of 2004, as codified at Village Code § 130-10(F)(12). (See also Defs.’ 56tl ¶ 117; Ul: man Aff. Exs. 2, 10). It further defined a dormitory as “a building ... [which contains] -sleeping quarters for administrative staff, faculty!,] or students,” and provided that “[d]ormitory rooms shall not contain separate cooking, dining!,] or housekeeping facilities except that one dwelling unit with completed housekeeping facilities may be provided for a use of a Superintendent or supervisory staff for every fifty dormitory rooms.” Local Law 5 of 2004, as codified • at Village Code § 130-4. (See also Ulman Aff. Exs. 2, 10.) Local Law 5 also explicitly provided that “[s]ingle-family, two-family, and/or multi-family dwelling units other than as described above shall not be considered to be dormitories or part of dormitories.” Local Law 5 of 2004, as codified at Village Code § 130-4. (See also Defs.’ 56.1 ¶ 118;-,Ulman Aff. Exs. 2, 10,).- . ...
The Village learned that the Congregation had purchased the -subject property, and, in general, that it would be used as a rabbinical college, in November 2004. (Pis.’ 56.1 ¶¶ 148-49; Defs.’ 56.1 ¶17,)
On December. 11, 2006, Ulman, after reviewing the wetlands laws of Chestnut Ridge, New Hempstead, and South Nyack, and the New York State Environmental Conservation Law, distributed a memo to Mayor Marshall discussing a proposed Wetlands law. (Id. ¶ 183; Defs.’ 56.1 ¶ 151.) On December 18, 2006, the Board
Subsequently, on January 22, 2007, the Board of Trustees held another hearing on the proposed law regulating dormitories and on the proposed law regarding wetlands, but most public comments “were aimed at the plans for the proposed rabbinical college.” (Pis.’ 56.1 1Í159; Defs.’ 56.1 ¶ 140.) For the first time, the Congregation had a videographer and court reporter record and transcribe the meeting. (Defs.’ 56.1 ¶ 141.)
After the hearing, the Village adopted Local Law 1 of 2007, (Defs.’ 56.1 ¶ 142), which provided, in relevant part, that “[a] dormitory building shall not occupy more than twenty (20) percent of the total square footage of all buildings on the lot,” Local Law 1 of 2007, as codified at Village Code § 130-10(F)(12). (See also Defs.’ 56.1¶ 143; Ulman Aff. Exs. 3, 16.)
On February 26, 2007, the Board of Trustees continued its public hearing on the proposed wetlands law, which was attended by Plaintiffs’ attorney, Susan Cooper, who requested that the public be given “further opportunity” to comment. (Defs.’ 56.1 ¶¶ 154-55.) In response, the Board of Trustees held another public hearing on the proposed wetlands law on March 26, 2007. (Id. ¶¶ 156-57.) On April 23, 2007, the Board of Trustees adopted Local Law 5 of 2007, (id. ¶ 158), which added a chapter to Village Law pertaining to wetlands and provided, in relevant part, and except for certain exceptions that are inapplicable here, that
it shall be unlawful to conduct, directly or indirectly, any of the following activities upon any wetland .., or within 100 feet of the boundary of any wetland ... unless a permit is issued therefor ... (A) [a]ny form of draining dredging, excavation];,] or removal of material, except removal of debris or refuse[;] (B) [a]ny form of depositing of any material such as but not limited to soil, rock, debris, concrete, garbage, chemicals, etc.[;] (C) [ejecting any building or structure of any kind, roads, driveways, the driving of pilings or placing of any other restrictions, whether or not they change the ebb and flow of water[;] (D)
[flnstalling a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid waste into or so as to drain into any wetland, water body[,] or watercourse!;] (E) [a]ny other activity which substantially impairs any of the several functions served by wetlands —
Local Law 5 of 2007, codified at Village Code § 126-3(A). (See also Defs? 56.1 ¶ 159; Ulman Aff. Exs. 4-5.) The law further provided that “[t]he aforesaid one-hundred-foot buffer ... shall not apply to lots that are improved with single-family residences.” Local Law 5 of 2007, codified at Village Code § 126-3(D). (See also Defs.’ 56.1 ¶ 160; Ulman Aff. Exs. 4-5;) Soon thereafter, in a May 9, 2007 email, Former- Mayor Sanderson indicated her opposition to an Orthodox middle school proposed to be constructed near the Village, noting that it did “not sound good" and encouraging others to-attend public hearings on the matter. (Pis.’ 56,1 ¶ 375 (citing Savad Deck Ex. 11 (Sanderson Dep. Tr.) 224-26); Savad Ex. 170 (May 9, 2007 email).-)
Both prior to and after the passage of the Wetlands Law, the: Congregation sent letters to the Village regarding its plans for the proposed rabbinical college, specifically on March 28, April 25, and June 22, 2007, and Susan Cooper spoke about the Congregation’s plans at a Board of Trustees meeting on April 12, 2007. (Pis.’ 56.1 ¶ 409.) While what requests those letters and statements contained, and whether they constituted a proper application for a meeting, is in dispute, (see Defs.’ Counter 56.1 ¶ 409-10), the Parties agree that the Congregation was never granted any type of meeting to discuss its proposal, (Pis.’ 56.1 ¶ 411). Nonetheless, in May 2007, the Congregation held a meeting “to present information to the public about the proposed rabbinical college,” and Village officials appear to have, .on a few occasions, encouraged residents not to attend. (Pis.’ 56.1 ¶¶ 429-30, 432-34; Defs.’ Counter 56.1 ¶¶ 432-33.)
A The Impact of the Challenged Laws
Plaintiffs allege that, collectively, the Challenged Laws prevent the construction of the rabbinical college in the Village. Because the entire Village, as noted, is zoned R-40, the Village Code permits only a limited number of land uses in the normal course, namely houses, libraries, museums, public parks, and playgrounds, see Village Code § 130-9, and, by special use permit, some other developments, including educational institutions, see Village Cdde-§ 130~10(F), and houses of worship, see Village Code § 130-10(G).
B. Procedural History
Plaintiffs’ filed their first Complaint on July 10, 2007, (Dkt. No. 1), and then filed an Amended Complaint on July 30, 2007, (Dkt. No, 12). Plaintiffs, filed a Second Amended Complaint on November 19, 2007, (Dkt. No.- 27).
Following discovery, the Court held a pre-motion conference on October 27,2014, (see Dkt. (minute entry for Oct. 27, 2014)), at which the Court adopted a Scheduling Order for summary judgment motions, (Dkt. No. 135). Pursuant to that Order, Plaintiffs filed tjieir Motion for Partial Summary Judgment and associated documents, (Dkt. Nos. 137-139, 143-144, 146-149, 151-155), and .Defendants filed their Motion for Summary Judgment and associated documents, (Dkt. Nos. 140-142, 145, 150), on January 22,2015. Pursuant to an extension of time granted by the Court, (see Dkt. Nos. 163, 187), the Parties filed opposition papers on April 2, 2015, (Dkt. Nos. 167-173, 175-76), and replies on May 21, 2015, (Dkt. Nos. 190,193). Defendants also filed them Counter Statement to Plaintiffs’ Supplemental Rule 56.1 Statement on May 21, 2015. (Dkt. No. 194.) Additionally, pursuant to an extension of time granted by the Court, (Dkt. No. 166), the United States of America (“United States”) filed a Motion to Intervene and a brief defending the constitutionality of RLUIPA on April 23, 2015, (Dkt. Nos. 182-183), which Motion the Court granted on April 24,2015, (Dkt. No. 184).
On April 27, 2015, the Court held a pre-motion conference on Plaintiffs’ putative motion for sanctions for spoliation of evidence. (See Dkt. (minute entry for April, 27, 2015).) Pursuant to a Scheduling Order of the same date, (Dkt. No. 185), and an extension of time granted by the Court, (Dkt. No. 189), Plaintiffs filed their Motion for Sanctions and associated documents on June 3, 2015, (Dkt. Nos. 195-197). Defendants filed their Opposition and associated documents on July 1, 2015, (Dkt. Nos. 200-204), and Plaintiffs filed their Reply on July 15, 2015, (Dkt. No. 205). The Court held Oral Argument on the pending Sum
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc.,
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care, LLC v. Dep’t of Health & Mental Hygiene of City of N.Y.,
1. Standing
The Court begins, as it did in the 2013 Opinion and Order, with the threshold issue of standing. See Pettus v. Morgenthau,
Generally, under Article III, to obtain retrospective relief, a plaintiff must show (1) that he or she suffered an injury in fact which is concrete and particularized and actual or imminent, (2) that the injury is fairly traceable to the alleged unlawful conduct of the defendant, and (3) that it is likely that the injury will be redressed by a favorable federal court decision. See Marcavage v. The City of N.Y.,
In addition to the requirements of Article III, there are also prudential limits on standing. See Lerman v. Bd. of Elections,
In its 2013 Opinion and Order, the Court held that .the Congregation “ha[d] shown that it, ha[d] standing to challenge the ordinances -at issue because, accepting as true the allegations in the Second Amended Complaint, the Congregation ha[d] alleged a particularized injury that would be redressed if the Court granted the requested relief.” Tartikov,
The Court previously found standing on the basis of five separate allegations in the Second Amended Complaint, namely:
(1) the Congregation owns the Subject Property; (2) it purchased the Subject Property with the intention of building a rabbinical college thereon;, (3) it already has begun to develop plans to build the rabbinical college; (4) the Subject, Property is subject to [§§ ] 130-4,130-9, and 130-10 of the Village Zoning Code, as well as [§ ] 126 (the Village’s wetlands ordinance), which on their face prohibit unaccredited educational institutions and some of the Congregation’s planned accessory uses; and (5). those provisions were enacted unlawfully to prevent the Congregation from building its rabbinical college.,
Tartikov,
With regard to the Dormitory Law, Defendants argue that while the Challenged Laws permit dormitories as accessory uses to an educational use, (Defs.’ Mem.' 12 (citing Local Law 5 of 2014 and Local Law 1 of 2007)), “[a]s a matter of law, the housing aspect of Plaintiffs’ hypothetical plan is not an accessory use, because it is so disproportionate to the educational'use that it cannot be subordinate or incidental,” {id. at 11.) In support, Defendants cite two dated cases in which state courts held that certain land uses were not accessory uses because they were not “naturally and normally incidental to the main use of the premises.” (Id. at 12 (citing Ames v. Palma,
The Village Code contains no language proclaiming that certain uses cannot be because of their size, but rather defines accessory as “[a] use which is customarily incidental and subordinate to the principal permitted use on the lot and located on the same lot therewith...,” Village Code § 130-4. Defendants’ cases likewise do not stand for the proposition that the mere size of a proposed use, either in absolute terms or in proportion to other uses, renders it non-accessory., Rather, as the court in Ames put it, “[a]n accessory use that is too large for an applicant’s proven needs ceases to be naturally and normally incidental to the main use of the premises,”
The evidence in the record is sufficient to establish standing as to the Dormitory Law. Plaintiffs contend, repeatedly, that they intend, and need, to build family housing for students of the proposed rabbinical college, and that such housing will only be used by students, faculty, and their families. {See Pl.’s 56.1 ¶¶ 457, 459-62, 465-67, 471-73, 489-491 (discussing need for such housing); see also ¶486 (“The housing component of the rabbinical college is only for students (and teachers) who are committed to the full-time religious training program along with.their families, as well as one or two caretakers of the subject property.”); ¶497 (noting that, when the Congregation was formed, “the understanding was that the planned rabbinical college would be only for students (and teachers)- committed to the full-time program, along with their families”); ¶¶ 493-495 (discussing need for family housing with housekeeping, cooking, and dining facilities); ¶¶ 603-614 (discussing how the Dormitory Law prohibits plaintiffs’ desired housing).) While some of the families living in the proposed dormitories may be large, potentially requiring the construction . of large facilities, that fact does not make their size disproportionate, as a matter- of law, to their need. See Assoc. of Zone A & B Homeowners Subsidiary, Inc. v. Zoning Bd. of App. of City of Long Beach,
Additionally, the question of whether the housing at issue here is actually an accessory use is beside the point. The Dormitory Law, in concert with other Village laws, including the Challenged Laws, prevent Plaintiffs from building the family housing they seek as part of their rabbinical college. The Dormitory Law, specifically, prohibits any sort of housing as part of an edjucational institution that is not defined as a “dormitory” in that statute. See Village Code § 130-9. Because the Dormitory Law explicitly precludes hous
With regard to the Wetlands Law, Defendants argue that “[t]here is no evidence the wetlands local law applies to any or some of the wetlands on the Subject Property because Plaintiffs have provided no wetlands studies of this property that would identify wetlands covered by the local wetlands law.” (Defs.’ Mem. of Law in Opp’n to Pis.’ Partial Mot. for Summ. J. (“Defs.’ Opp’n”) 27 (Dkt. No. 170).) Plaintiffs do, however, produce at least some evidence of wetlands on the Property, (see Beall Decl. ¶¶ 281-84, 287, 289 (discussing wetlands on property in the context of state and federal regulations), Ex. H (indicating the existence of wetlands on the east side of the property, and a stream on the west side of the property); Ex. I (same); Ex. T (property map identifying wetlands); see also Aff. of Amanda E. Gordon (“Second Gordon Aff.”) Ex. A (Report of Charles J. Voorhis) at 63 (Dkt. No. 173) (indicating the existence of wetlands on the Subject Property)), which Defendants do not rebut.
2. Ripeness
Defendants also contend that Plaintiffs’ challenge is unripe because Plaintiffs never submitted a formal application related to the proposed rabbinical college. (See, e.g., Defs.’ Mem. 14 (“Plaintiffs’ claims are not ripe ... because they never filed an application —”); Defs.’ Opp’n 4 n. 6 (“[T]he dormitory regulations and wetlands regulations are beyond this Court’s jurisdiction due to a lack of standing and ripeness.”); id. at 26 (“Plaintiffs lack standing on the wetlands regulation, as discovery has shown that their attack on them is unripe and a claim at this point is merely speculative. Therefore, the Court lacks jurisdiction over the wetlands provisions, even as to a facial challenge.”).) For the reasons stated in the Court’s 2013 Opinion and Order, which is unaffected by the evidence adduced after that Opinion and Order was issued, Plaintiffs’ facial challenges, by virtue of being facial challenges, are ripe and have been ripe from “ ‘the moment the [Challenged laws] [were] passed.’” Tartikov,
In a similar vein, Defendants suggest that Plaintiffs’ RLUIPA substantial burden claim is unripe because Plaintiffs have not filed an application, meaning the Village has not yet “impose[d]” the Challenged Laws on them. (See Defs.’ Mem. 36-37.) Plaintiffs disagree, noting that the inclusion of “implement” in the statute suggests that “impose” has a different meaning and is analogous to “enact.” (See Pis.’ Mem. 10-11.) The Court agrees with Plaintiffs: a substantial burden can be imposed by the mere enactment of legislation. See Elijah Group, Inc. v. City of Leon Valley,
3. Spoliation
a. Factual .Background,
Plaintiffs, in their Motion for Sanctions, request that the Court sanction Defendants for destroying a Facebook post (the “Facebook Post”) written by Louie and related text messages between Mayor Ya-gel and Louie, and for failing to produce “the non-destroyed portion of those texts,” which Plaintiffs allege contained relevant evidence. (Pis.’ Mem. of Law in Supp. of Pis.’ Mot. for Sanctions Due to. Spoliation of Evidence (“Pis.’ Sanctions Mem.”) 2 (Dkt. No. 196).)
In May 2013, Louie posted a comment on her personal Facebook page noting her disapproval of an all-male gathering of Ha-sidic/Orthodox Jews, though without directly referencing their religion. (Defs.’ Mem. of Law in Opp’n to Pis.’ Mot. for Sanctions Due to Spoliation of Evidence (“Defs.’ Sanctions Opp’n”) 1-2 (Dkt. No. 200).)
FACT: Rita Louie, while still a Trustee, posted on Facebook, inappropriately, about an ‘ALL MALE gathering’ at theProvident Bank Ballpark. Especially-given the lawsuit which the Village of Pomona is involved with and the NATION [sic] IMPLICATIONS it could have. i.e., federal law potentially being struck down as unconstitutional, just as it’s [sic] predecessor (RFA) was. Total lapse in reason and judgment. Here [sic] explanation (have the text still Rita), on medication and I’ve removed it. And if a vacancy should occur (post this village election), how could anyone in their right mind (i.e. New Mayor), consider this person as a viable candidate to fill an [sic] trustee unexpired (his), given their predisposition to making such blatant and inappropriate remarks.
(Deck of Paul Savad in Supp. of Pis.’ Mot. for Sanctions Due to Spoliation of Evidence (“Savad Suppl. Deck”) Ex. 1 (Comment) (Dkt. No. 197).)
After learning that Louie had made such remarks, Plaintiffs requested “all responsive social media posts and comments,” including Louie’s Facebook post and the text of the post the Mayor Yagel indicated that he retained. (See Savad Suppl. Deck Ex. 2 (Mar. 19, 2015 email demanding production).) Defendants responded they were unable to produce the Facebook post because Mayor Yagel did not have a copy and produced a partial copy of text messages discussing the post. (Id. Ex. 3 (Mar. 25,2015 letter from Andrea Donovan Napp to Donna Sobel, Esq. describing disclosures).) The text messages contained the following exchange:
[Mayor Yagel]: Is it your position to cause damage to the village? Someone just sen[t] me a screenshot of your Fa-cebook post!. If it is your intent to jeopardize target ... then you are succeeding and may cause us to loose! [sic] You should consider.....
[Louie]: A little over the top but I understand your anger. All taken down .and I reviewed all my accounts to make sure there are no other unfortunate mistakes. But no, I don’t think I should consider resigning.
[Mayor Yagel]: I am so angry now that my heads [sic] about to pop. Their lawyers will use everything. Remember the case in NJ where the federal judge ruled that comments made by a public official in a non official [sic] setting led him to decide potential prejudice even though there was no final ruling but based on prior witness testimony. We have, too much riding on this case for you to jeopardize it. Everything is fair game in the lawsuit. Judge Karas is watching this case ... publicly commenting on an all male [sic] gathering when it’s related to a religious entity, is not good!
(Savad Suppl. Deck Ex. 4.) Plaintiffs allege that a portion of the text message is missing after Mayor Yagel writes “[y]ou should consider,” (Pis.’ Sanctions Mem. 4), though Louie’s response at least suggests, that Mayor Yagel encouraged Louie to consider resigning, (Savad Suppl. Deck Ex. 4; see also Defs.’ Sanctions Opp’n 10 n. 11), as Mayor Yagel himself avers,-(Yagel Sanctions Deck ¶20). Plaintiffs nonetheless allege that Defendants intentionally destroyed the Facebook post, and failed to retain a complete set of the texts., (Pis.’ Sanctions Mem. 5.)
Plaintiffs further allege that Mayor Ya-gel lied about his preservation of this evidence when he certified, on July 3, 2013, only two months' after the exchange at issue, and in response to Plaintiffs’ inter
b. Applicable Law
“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Byrnie v. Town of Cromwell Bd. of Educ.,
c. Application
As to the first element, the duty to preserve, an obligation to preserve evidence “usually arises when a party has notice that the evidence is relevant to litigation ... ' but also on occasion in other circumstances, as for example when the party should have known that the evidence may be relevant to future litigation.” Byrnie,
It is clear that Defendants were under an obligation to preserve the Face-book post and related text messages as of the date of the Facebook post: May 10, 2013. This action was filed in July 10, 2007, (see Dkt. No. 1), and there was a litigation hold in place as of August 29, 2007, nearly six years before the comment at issue was posted, (see Savad Suppl. Decl. Ex. 11 (Aug. 29, 2007 letter.from Former Mayor Sanderson to village officials re: litigation hold)). The Facebook post is also subject to the litigation hold because it appears to reference a gathering of individuals with the same religious observance as the Plaintiffs in this Action, who allege that Louie, among others, discriminated against them. Indeed, Mayor Yagel’s strong reaction to the post is suggestive not only of the obligation to preserve the post and related text messages but also of their relevance.
As to the second element, culpable state of mind, “at times [the Second Circuit has] required a party to have intentionally destroyed evidence; at other times [the Second Circuit has] required action in bad faith; and at other times [the Second Circuit] has allowed an adverse inference based on gross negligence” and, accordingly, “a case by case approach [is] appropriate.” Byrnie,
Here, the culpable state of mind element is met. Mayor Yagel clearly stated his concern about the Court or Plaintiffs learning about. Louie’s Facebook post in his comment, and in response Louie deleted the post. Indeed, rather than seek to preserve the post or any other relevant social media, Louie assured Mayor Yagel that she had “reviewed all [her] accounts to make sure there [were] no other unfortunate mistakes.” (Savad Suppl. Decl. Ex. 4.) While Defendants emphasize the fact that Mayor Yagel did riot recognize the “significance” of Louie’s statement that she had deleted the post, (see Defs.’ Sanctions Opp’n 9), neither that detail nor the fact that Mayor Yagel “continued to castigate” Louie means that Mayor Yagel did not instigate the destruction of the evidence; his tirade may have been aimed at preventing Louie from posting similar comments in the future, (id. at 9). Assuming Mayor Yagel’s concern about the post truly was rooted in his “perception that Plaintiffs would ... have[ ] twisted any incidental reference to Orthodox/Hasidic Jews into something far more nefarious,” that alone not only demonstrates that Mayor Yagel did not want Plaintiffs to obtain the Facebook post but also, as the text messages make clear, suggests that Mayor Yagel was concerned about the Court learning about the post as well. (Id. at 9-10; see also Reply Mem. of Law in Supp. of Pis.’ Mot. for Sanctions Due to Spoliation of Evidence (“Pis.’ Sanctions Reply”) 3 (Dkt. No. 205).) Thus, regardless of whether there was actually a “conspiracy” between Mayor Yagel and Louie to destroy the Facebook post, (see Defs.’ Sanctions Opp’n 10), this is the rare case where bad faith, and a clear intent to deprive Plaintiffs of the evidence at issue, is sufficiently clear from the face of the record.
As to the third element, “[t]he burden of proving that evidence would .have been relevant to a party’s claims or defense is proportional to the mens rea of the party who destroyed the evidence, and where the party destroyed the evidence due to ordinary negligence [as opposed to bad faith], the burden falls on the prejudiced party to produce some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.” Williams v. N.Y.C. Transit Auth., No. 10-CV-882,
Facebook posts are regularly produced in litigation as .evidence of a party’s thoughts and actions, see, e.g., Reid v. Ingerman Smith LLP, No. 12-CV-307,
“[A] district court has broad discretion in crafting a proper sanction for spoliation,” which should “serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” West v. Goodyear Tire and Rubber Co.,
Plaintiffs contend that Defendants’ behavior warrants “‘severe disciplinary measures.’ ” (Pis.’ Sanctions Mem. 14 (quoting Metro. Opera Ass’n Inc. v. Local 100, Hotel Employees & Rest. Emps. Int’l Union,
While the Court recognizes that terminating sanctions may be appropriate “if there is a showing of willfulness, bad
As an alternative to terminating sanctions, Plaintiffs argue that Defendants should “be precluded from offering any evidence that Local Law 1 of 2007 and Local Law 5 of 2007 were not passed with discriminatory animus” and that “the jury should be given an averse inference instruction” on this issue. (Pis.’ Sanctions Mem. 20.) Plaintiffs also ask that Defendants be precluded from offering evidence that a text amendment would be considered or that the Defendants’ interests were not pre-textual, and that the jury should be given an adverse inference instruction on this issue as well. (See id. at 21.) Plaintiffs maintain that any lesser sanction would be insufficient. (See id. at 22.)
An adverse inference is “an extreme sanction and should not be imposed lightly.” Treppel v. Biovail Corp.,
The Court finds such a limited sanction justified here. While, as noted above, there is sufficient evidence of bad faith to justify an adverse inference sanction, even if Defendants were only grossly negligent, such conduct is sufficient for the imposition of an adverse inference sanction. See Reilly v. Natwest Markets Grp. Inc.,
These sanctions are sufficient, as they give Plaintiffs the most powerful inference the jury could draw from the spoliated evidence, without rebuttal, thereby serving the remedial, punitive, and deterrent purposes of sanctions. See Kronisch,
Plaintiffs’ request for attorneys’ fees and costs is also warranted. Attorneys’ fees and costs “may be appropriate to punish the offending party for its actions or to deter the litigant’s conduct, sending the message that egregious conduct will not be tolerated.” Doe v. Norwalk Community Coll., 248. F.R.D. 372, 381 (D.Conn.2007) (brackets and internal quotation marks omitted). Because Defendants appear to have acted in bad faith, the Court awards Plaintiffs the attorneys’ fees incurred in connection with its Motion for Sanctions. See Dorchester Fin. Holdings Corp. v. Banco BRJ S.A.,
S. Plaintiff s’Rule 56.1 Statements
Local Rules 56.1(a) and (d) require that a moving party file “a separate, shorty and concise statement ... of the material facts to which the moving party contends there is no- genuine issue to be tried,” “followed by citation to evidence.” The purpose of these rules is “to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., Inc., 258
Defendants devote nearly half of their Opposition to the contention that Plaintiffs’ Rule 56.1 Statements should be stricken or disregarded. Among other things, Defendants contend that Plaintiffs’ 56.1 Statements are “nothing short of abusive” and consist of a “voluminous compendium of assertions, accompanied, by opinion-laden declarations, that read[] more like a complaint, containing allegations, mischaracterizations, opinions[,] and legal conclusions.” (Defs.’ Opp’n 3.) Indeed, Defendants suggest that Plaintiffs filed their lengthy Rule 56.1 Statements intentionally, using their allegedly deep coffers to “outlast” the Village. {See Defs.’ Opp’n 4 (citing Savad Decl. Ex. 31 (C. Babad Dep. Tr.) 107).) . Defendants ask that the Court “us[e] its discretion to strike. Plaintiffs’ Statements] of Facts in [their] entirety or, alternatively, consider[] only those paragraphs containing truly undisputed facts, as contemplated by the Local Rules and the well-developed body of case law.” .{Id. at 5.) The Court will take up each of the flaws that Defendants identify in Plaintiffs’ Rule 56.1 Statements in turn.
First, Defendants are correct that Plaintiffs’ Rule 56.1 Statements are certainly not “short and .concise.” As Defendants point out,.Plaintiffs’ main Rule 56.1 Statement is 998 paragraphs long and is supported by 11 declarations and 370 exhibits. {Id. at 1.) Plaintiffs also submitted a Supplemental Rule 56.1 Statement at the end of their Counter Rule 56.1 Statement, sporting an additional 43 paragraphs (one of which contains 31 subparagraphs) and 88 additional exhibits. (See Pis.’ Counter 56.1; Decl. of Paul Savad in Opp’n to Defs.’ Mot. for Summ. J. (Dkt. No. 169).) Plaintiffs’ prolixity is therefore pronounced, and worsened by redundancy; many of the paragraphs in Plaintiff’s Rule 56.1 Statements are repetitive, some to the point that they are nearly identical’ to paragraphs that precede them. {Compare, e.g., Pis.’ 56.1 ¶ 489 (“Housing is required for the rabbinical college use.”) with id. ¶492 (“Providing housing on campus is critical to the success of the proposed rabbinical college program.”); id. ¶ 50 (“A
• Of course, Plaintiffs are correct that the mere fact that a Local Rule 56.1 statement is lengthy does not .render it in violation of the Rule, see, e.g., Capitol Records, LLC v. Vimeo, LLC, 972 F.Supp,2d 500, 509 (S.D.N.Y.2013) (denying motion to strike and finding that a “ninety-page, 403-paragraph 56.1 statement” was not “unduly lengthy in light of the numerous an complex issues raised ... and the large body of evidence”), and they attempt to justify the length of their Rule 56.1 Statements on the basis of the volume of discovery and, in particular,. “Defendants’ ‘kitchen sink’ approach” represented by their summary judgment Motion on all fourteen of Plaintiffs’ causes of action. (Reply Mem. of Law in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Reply”) 7 (Dkt. No. 190).) Even in light of those considerations, Plaintiffs’ Rule 56.1 Statements are unnecessarily lengthy, due especially to the inclusion of redundant or incomprehensible facts, as discussed above. The Court will disregard all such repetitive or incomprehensible statements but notes that doing so does not alter the Court’s evaluation of the pending Motions. Cf. UPS Store, Inc. v. Hagan,
Second, Defendants contend that Plaintiffs’Rule 56.1 Statements are “composed primarily of assertions that are neither relevant nor material to Plaintiffs’ summary judgment motion,” (Defs. Gpp’n 7.) Certainly, “[f]actual disputes which are irrelevant or unnecessary” to the claims at issue “will not be counted.” Anderson v. Liberty Lobby, Inc.,
Third, Defendants contend that Plaintiffs’ Rule 56.1 Statements are “replete with argument, mischaracterizations[,] [and/]or opinions to which Plaintiffs cannot reasonably have expected Defendants to agree.” (Id. at 9.) Defendants cite a list of facts Plaintiffs represented as undisputed, many of which, the Court agrees, are clearly in dispute. (See, e.g., Pis.’ 56.1 ¶¶ 580 (“The Village prohibits Plaintiffs’ religious land use ... by right or by special permit within its jurisdiction.”), 972 (“Existing Village regulations sufficiently protect the Village’s interest in the water supply.”).) The Court will not consider these .facts as undisputed,-though it declines to outline specifically which paragraphs are implicated because. Defendants have indicated their opposition to them, in their Counter Rule 56.1 Statements, meaning they are, for purposes of the instant motion, disputed.
Fourth, Defendants contend that Plaintiffs’ Rule 56.1 Statements contain improper legal conclusions. The Court agrees. (See, e.g., Pis.’ 56.1 ¶¶ 483 (“The Village is a ‘jurisdiction,’ and both the Village and the Board of Trustees are ‘governments’ under RLUIPA.”); 526 (“Shuls, libraries, courtrooms, and classrooms constitute relir gious exercise and religious land use.” (italics omitted)).) Even some of the headings to sections of Plaintiffs’ Rule 56.1 Statements contain impermissible argument or legal conclusion. (See, e.g., id. at 40 (“The Village’s Targeting of Orthodox/Hasidic Jews and Their Property.”).) As noted above, the Court will disregard such statements.
Fifth, Defendants contend that certain statements do not support the propositions for which they are asserted. The Court agrees that, in some circumstances, Plaintiffs’ claims are not supported by the evidence cited, (see, e.g., id. ¶501 (asserting that Defendants have “no facts to indicate that Plaintiffs’ religions beliefs concerning the need to live with their families áre not sincere,” citing pages of an exhibit that do not exist); id. ¶ 793 (asserting that Defendants had “no studies or reports demonstrating a need for laws regulating educational institutions in order to protect its traffic interests” and incorrectly citing Sa-vad Declaration Exhibit 312 rather than Exhibit 310 for this proposition, thé latter of which only indicates that Defendant had no “formal studies or reports establishing a need for controlling traffic” at the time) (emphasis added)), or are not' accompanied by citations to evidence at all, (see, e.g., id. ¶ 269 (containing no citation to the récord to support assertions about the campaign for the Villáge Board of Trustees)). However, as noted above, and as with any other disputed statements of material fact, the Court will consider the sources for the claims made in dueling Rule 56.1 Statements when they are disputed, rather than rely on the Rule 56.1 Statements themselves, so there is no need to separately strike or disregard these statements.
Overall, Defendants claim that the infirmities in Plaintiffs Rule 56.1 Statements have “prejudiced” them because they have had to “expend countless hours and considerable sums in order to fashion and appropriate response,” including “verify[ing] each and every one of the 998 ‘facts’ asserted.” (Defs.’ Opp’n 11-12.) Defendants accordingly ask that the Court strike or disregard the entirety of Plaintiffs’ Rule
The Court is sympathetic to Defendants’ concerns. Plaintiffs’ Rule 56.1 Statements are redundant and contrary to the letter and spirit of Local Rule 56.1. Further, Plaintiffs make little attempt to justify the length of their Rule 56.1 Statements or to respond to the other infirmities Defendants identified, except as already explained above. (Pis.’ Reply 6-9.) Rather, Plaintiffs argue that the remedy is “not ... to strike the statement, but to simply disregard the faulty sections.” (Pls.’ Reply 18 (citing, inter alia, Ross Univ. Sch. of Med., Ltd. v. Brooklyn-Queens Health Care, Inc., No. 09-CV-1410,
A Admissibility of Declarations
a. Legal Standard for Expert Opinions
Defendants lodge several specific challenges to Plaintiffs’ experts. They contend that “[a]ll but one of Plaintiffs’ expert declarations should be stricken in their entirety, or the indicated portions disregarded, and the corresponding Statement of Fact paragraphs disregarded as well.” (Defs.’ Opp’n 12.)
An expert may offer testimony to assist the factfinder in “understanding] unfamiliar terms and concepts.” United States v. Bilzerian,
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the. testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the ease.
The proponent of expert testimony has the burden of establishing these elements by a preponderance of the evidence. See United States v. Cruz,
“Rule 26 of the Federal Rules of Civil Procedure requires all expert witnesses to submit a written report that includes a complete statement of all opinions the witness will express[,] the basis and reasons for them[,]‘[and] the facts or data considered by the witness in forming them.” Morritt v. Stryker Corp., No. 07-CV-2319,
“Because the purpose of summary judgment is to weed out cases in which there is no genuine issue as to any material- fact and ... the moving party is entitled to a judgment as a matter of law, it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment,” where the Court must exercise this “gatekeeper” role. Raskin v. Wyatt Co.,
b. Application.to Exports
Defendants first contend that the declarations prepared by Plaintiffs’ Wetlands, Traffic, Planning, and Architecture Experts—Barbara Beall (“Beall”), - William Fitzpatrick (“Fitzpatrick”), Alan Weinstein (‘Weinstein”), and Susannah Drake (“Drake”)—should be stricken because they are irrelevant to a facial challenge. (See Defs.’ Opp’n 14.)
Before proceeding to the specific challenges to each expert, two overall contentions are' worth addressing. First, as described in the next section, the Court finds Defendants’ contention that the experts’ findings “would only be relevant [to] an as-applied challengé,” (id.), to be without merit. The effect of the Challenged Laws on Plaintiffs 'is not only relevant tp them discrimination claims, but is also suggestive of the degree to which the Challenged Laws may affect other religious groups. The Court therefore denies Defendants’ relevance challenge.
Regarding specific expert opinions, Defendants first challenge the. Beall Declaration, Plaintiffs’ wetlands expert, on a-few grounds. First, Defendant contends that Beall discusses matters beyond her expertise, including “the Visage’s Master Plan, the utility of the SEQRA process, and the Village’s laws related to Educational Institutions and.. Dormitories.” (Defs.’ Opp’n 15. (citations omitted).) While Defendants’ discussion of this issue is rather flippant, the Court agrees that Beall does, $t times, venture past her area of expertise in her declaration. (See, e.g., Beall Deck ¶ 231 (declaring that “automotive repair schools [and] driving schools .... can be accredited by various accrediting bodies”).) The Court will disregard those statements in considering the pending Motions for Summary Judgment, with
Second, Defendants contend that Beall improperly offers “legal conclusions and policy analysis.” (Defs.’ Opp’n 16.). The Court is not convinced that Beall cannot engage in “policy analysis” related to wetlands use, nor does the mere use of legal jargon, or reference to laws that govern wetlands use, render an opinion a “legal conclusion,” Therefore, the vast majority of Beall’s opinions are admissible. However, the Court will exclude any statements that cross the line from policy analysis to pure legal conclusions, such as when Beall only interprets the applicable law itself. (See, e.g,, Beall Decl. ¶¶ 113-122 (stating, and explaining, legal conclusion that the Wetlands Law was not necessary for the Village to comply with federal or statute statutory requirements); ¶ 257 (“The Village has the authority to complete an EIS review under SEQRA for an educational institutional project.”).) See Jones v. Midland Funding, LLC,
Third, Defendants contend that the Beall Declaration “should be stricken or disregarded in substantial part because it is based on speculation and/or lacks any reliable methodology.” (Defs.’ Opp’n 16.) Defendants allege, more specifically, that Beall “makes sweeping statements with little or no support,” and “purports to apply methodologies that are unreliable at best,” e.g., identifying wetlands by looking at aerial photos and maps. (Defs.’ Opp’n 17.) While the Court will consider the evidence cited—which properly may, as Plaintiffs point out, be personal knowledge, (see Pis.’ Reply 11); see also Kumho Tire Co., Ltd. v. Carmichael,
Defendants next challenge the Declaration of Fitzpatrick, Plaintiffs’ traffic expert. According to Defendants, Fitzpatrick’s opinions are “entirely unsupported” because Plaintiffs’ rabbinical college is hypothetical, and because Plaintiffs “have not provided any site plans, estimated traffic volumes, attendance or population estimates!,] or any other information that might in some way substantiate his analysis.” (Defs.’ Opp’n 17.) Defendants provide no support for the contention that Fitzpatrick is required to rely on previously provided reports on traffic volumes and population estimates, nor do they levy specific challenges to the particular conclusion that Fitzpatrick draws. See Astra Aktiebolag v. Andrx Pharm., Inc.,
Defendants also challenge the Declaration of Weinstein, Plaintiffs’ planning expert, “because it contains conclusions of law, eonclusory expert opinions not supported by appropriate evidence, expert opinions not previously disclosed ...., and opinions not relevant to a facial challenge.” (Defs.’ Mem. 18) The Court agrees in part.- While the Court finds that Weinstein’s opinions were previously disclosed, even if they have changed slightly from their initial form, (see Defs.’ Opp’n Ex. D (noting, for example, that Weinstein’s initial expert report indicated that 38 New York jurisdictions have an accreditation requirement, and that Weinstein’s Declaration changed that number to five)); see also Newell Puerto Rico, Ltd. v. Rubbermaid Inc.,
Defendants also challenge the Declaration of Drake, Plaintiffs’ Architecture expert, arguing that it “fails to meet the required evidentiary standards under Daubert.” (Defs.’ Mem. 19.) Defendants specifically contend that the Drake Declaration “gives no indication that [Drake] has ever had any experience ... with a rabbinical college, a Torah Community, or, for that matter, any type of religious institution of. higher education,” and that she also “has no idea of the nature, size, shape, capacity[,] or intended location of any of the structure that Plaintiffs intend to build at the subject site,” and if the proposed rabbinical college is at all comparable to the universities she uses as comparators. (Id. at 20-21.) The Court disagrees. While Defendants are correct that Drake has no information about the exact plans for the rabbinical college, it is entirely within the scope of her expertise to opine, based on her knowledge of the field and her investigation of the Subject Property, on ways in which .the community impact of a rabbinical college may be minimized. Indeed, two of the paragraphs that Defendants specifically identify as flawed proceed in precisely this way; Drake opines that a rabbinical college can be built in a way that is. sensitive to the surrounding community, (see Declaration of Susannah C. Drake 1Í15 (Dkt. No. 154)),- and provides examples of how that can be achieved, e.g., by using building materials that, blend into the surrounding landscape, (see id. ¶ 21). Accordingly, the Court will not strike the Drake Declaration on this basis, without prejudice to Defendants’ renewing their Motion to Strike.
c. Tauber Declaration
Relatedly, Defendants challenge the Declaration of M.. Tauber, “Tartikov’s principal,” on several grounds, including relevance and the inclusion of opinion testimony, information beyond Tauber’s personal knowledge, and legal conclusions. (Defs.’ Mem. 22-23.) The same standards with regard to legal conclusions and opinions apply to his Declaration, and personal knowledge is required for admissibility. See DiStiso v. Cook,
While the relevance challenge is meritless for- the reasons discussed below, Defendant is correct that there are inadmissible statements in the Tauber Declaration. It contains statements that are unsupported by personal knowledge, (see, e.g., Tauber Deck ¶ 7 (Dkt. No. 148) (“Every student who will attend the [rabbinical college is compelled by his religious beliefs to pursue this study.”)), statements that are unhelpful lay opinion, (see id. ¶ 14 (“I know that there is a great shortage of qualified rabbinical judges who can resolve issues according to the true meaning of our religious laws.”)), and statements that are improper legal conclusions, (see id. ¶41 (explaining that the process for “a zone/text amendment or variance ... is a long and discretionary process”)). • The Court will disregard such statements, but otherwise not strike the Declaration. This ruling is, once again, without prejudice to Defendants’ refiling their Motion to Strike.
5. Governing Standards for a Facial Challenge
As the Court previously noted, “[fjacial invalidation is, manifestly, strong medicine that has been employed by [courts] sparingly and only as a last resort,” wherein a plaintiff has a “heavy burden in advancing her claim.” Nat'l Endowment for the Arts v. Finley,
As this Court previously explained, Defendants are correct that “[a] facial challenge is one that addresses not the application of an ordinance to a particular set of plaintiffs, but the legality of the ordinance itself.” Tartikov,
However, there are exceptions to the Salerno standard. First, it plainly does not apply to First Amendment claims. See United States v. Farhane,
Third, in the context of the Free Exercise Clause, despite Defendants’ claim to the contrary, Church of the Lukumi Babalu Aye, Inc. v. City Hialeah,
More generally, based on broader principles of constitutional analysis, Plaintiffs’ experience is also appropriately the backbone of their constitutional claims. In general, “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction.” Planned Parenthood of SE Pa. v. Casey,
Of course, this does not mean that an extended discussion of Jewish Law, -the nature of a Torah Community, or the Congregation’s history, among other things, necessarily are dispositive in this case. As discussed above, the unwieldiness of Plaintiffs’ Rule 56.1 Statement is' partially due to the repetitive inclusion of facts of this sort, which may or may not even be relevant to an as-applied challenge. Nonetheless, Defendants err in their wholesale dismissal of facts specific to Plaintiffs’ experience, because it is that experience that may be the only Way for the Court or a fact-finder to determine whether the Challenged Laws are facially constitutional.
6. Equal Protection (Claim If)
In their Fourth Claim, Plaintiffs allege that Defendants have violated the Equal Protection Clause of the Fourteenth Amendment. (See, SAC ¶¶ 260-63.) The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
Plaintiffs may establish an equal protection violation by identifying (1) “a law that expressly classifies on the basis of race,” (2) “a facially neutral law or policy that has been applied in an unlawfully discriminatory manner,” or (3) “a facially neutral [law or] policy that has an adverse effect and that was motivated by discriminatory animus.” Id. As the Court previously held, Plaintiffs rely on the third method here. See Tartikov,
a. Discriminatory Purpose
“Discriminatory purpose implies that the decisionmaker ... selected or reaffirmed, a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Hayden v. Cty. of Nassau,
There is ample evidence in the record to make the question of discriminar tory purpose a disputed fact. First, there is the timing of the Challenged Laws. With regard to the Accreditation Law, the relevant provisions of which were adopted in January 2001 and amended in September 2004, while the Parties dispute exactly what the nexus of the relevant local laws was, they agree that, in January 2000, the Village Planner circulated memos entitled “Proposed Primary School and Pre-School ([Yeshiva Spring Valley] Pomona) and the Village Zoning Regulations regarding Schools,” recommending that the Village adopt zoning laws for schools, which were otherwise “scant.” (Pis.’ 56.1 ¶¶ 123-24.) Mayor Marshall at the time stated, in the context of the Accreditation Law, that
With regard, to the Dormitory Law, the .relevant provisions of which were adopted in September 2004 and January 2007 at the aforementioned January 22, 2007 meeting,. Mayor Marshall reported that there was “a hostility” among attendees “engendered from [an] article in The Journal News regarding the Tartikov project,” (Pis.’ 56.1 ¶ 161 (citing Savad Decl. Ex. 3 (Marshall Tr.) 176 (“There were several meetings during my time that were nasty, this was , one of them”)); Defs.’ Counter 56.1 ¶ 161; see generally Savad Decl. Ex. 78 (Jan. 22, 2007 Meeting Transcript).)
The Wetlands Law, the relevant provisions of which were adopted in April 2007, was first considered at the aforementioned January 22, 2007 meeting. (Pis.’ 56.1 ¶ 173; Defs.’ Counter 56.1 ¶ 178.) The Village did not conduct any studies prior to the adoption of the law to determine where the Village’s wetlands were, what threats they faced, or how best to protect them, (Pis.’ 56.1 ¶ 190); Defs.’ Counter 56.1 ¶ 190, though Mayor Marshall was generally aware of the existence of Wetlands on the-Subject Property at the time, (Pis.’ 56.1 ¶ 180; Defs.’ Counter 56.1 ¶180). Nonetheless, between the January meeting and the passage of the Wetlands. Law, Trustees Sanderson, Louie, and Yagel indicated in campaign materials that voters needed to “stand up to the threat” that the Congregation posed, further stating “[y]ou need to vote for a team that is prepared to stand up to this threat of using the fundamentally unfair RLUIPA statute as a hammer against our village.” (Pis. 56.1 ¶ 275; Defs.’ Counter 56,1 ¶ 275.) Trustee Sand-erson also specifically indicated in a campaign video that' the rabbinical college “could completely change the village and the make-up of the village,” (Pis.’ 56.1 ¶279 (citing Savad Decl. 17 (Sanderson Tr.) 125-128); Defs.’ Counter 56.1 ¶279), and each candidate also more generally campaigned on a platform to “keep Pomona Pomona,” which Trustee Louie indicated meant to “keep Pomona the village that it is and not change it,” (Pis.’ 56.1 ¶ 294 (citing Savad Decl. Ex. 9 (Louie Tr.) 156)). In fact, the campaign materials for all three candidates indicated that “the single most important issue facing the village is clearly the Tartikov development.” (Pis.’ 56.1 ¶ 274; Defs.’ Counter 56.1 ¶274.) Accordingly, as was the case with the Dormitory Law,, the Wetlands Law was passed at a time when there was intense focus.on the proposed rabbinical college but when no studies or analysis had been conducted of the needs, or nature, of wetlands in the Village. The juxtaposition of these facts supports Plaintiffs’ claim that Defendants adopted the Wetlands Law as a pre-textual means to unlawfully target Plaintiffs’ land use-plans for the Subject Property.
• Village Planning Board Chairperson Melvin Cook, who admittedly was not employed by the Village until after the Challenged Laws were adopted, indicated that “[s]ome of us see the Rabbinical College as the beginnings of another restricted religious community similar to New Square,” (Pis.’ 56.1 ¶211 (citing, inter alia, Savad Decl, Ex. 1 (Cook Dep. Tr.) 102); Defs.’ Counter 56.1 ¶ 211), which Cook called a. “tribal ghetto” of ultra-orthodox Jews, (Pis.’ 56.1 ¶ 111 (citing Savad Decl. Ex. 1, at 89-90)). Cook indicated that the increased number of Orthodox Hasidic Jews hurt the community because of their adverse effect on the school systems and -diversity in Ramapo,- (Pis.’ 56.1 ¶296 (citing Sa-vad Decl. Ex. 1, at 79-80 (“I felt [the increase in Ultra Orthodox Jews] has hurt the community and it certainly affected the school systems in Rama-po.”)); Defs.’ Counter 56.1 ¶ 296.)38
• Village Clerk Leslie Sanderson indicated that if “rampant rumors” about “how many people” the rabbinical college would bring in “were true[,] it would usurp the -Village, perhaps the Village Board and the amount of people that live there.” (Pis.’ 56.1 -¶ 214 (citing Savad Decl-. Ex. 11 (Sanderson Dep. Tr.) 200); Defs.’ Counter 56.1 . ¶ 214.) f
• A published letter to the editor of The Journal News, which Defendants admit was authored at least in part by Trustee Yagel, contended that “[t]osay that a virtual mini-city within the village—that will house thousands of homogenous individuals who can control village elections—-is- ‘natural’ in any way is simply not true.” (Pis.’ 56.1¶ 215; Defs.’ Counter 56.1 ¶215 (citing Savad Decl. Ex. 150 (published letter)).) Trustee Yagel was also quoted in a New York Times article as saying that it is “disgusting” that the Congregation was “trying to create this mini city in our village.”- (Pis.’ 56.1¶ 246 (citing Savad Decl. Ex. 4 (B. Yagel Tr.) 245-46; id. Ex. 112); Defs.’ Counter 56.1 ¶ 246.)
• Village resident Robert Prol sent a letter to Mayor Sanderson and Trustees Yagel, Banks, and Louie less than a year before he was appointed to the Village planning board, stating, “[t]here is only one outcome acceptable to the community, and that is to maintain our fair zoning laws and the way of life we have all invested in.” (Pis.’ 56.1 ¶¶ 234-35 (citing, inter alia, Savad Decl. Ex. 2 (Prol Dep. Tr.) 123-24); Defs.’ Counter 56.1 ¶ 234.) Trustee Louie responded by admitting “[i]t’s a little unsettling what’s going on, but we are sure we can maintain our zoning laws in Pomona and keep our neighborhood rural and diverse.” (Pis.’ 56.1 ¶ 236 (citing Savad Decl. Ex. 9 (Louie Dep. Tr.) 221-26).) Robert Prol also referred to the Congregation as-“trying to force their slum on everyone else,” though he later clarified that by “slum” he meant that the “density level ... would [result in] lots of garbage and packages and everything else all over the place.” (Pis.’ 56.1 ¶ 244; Defs.’ Counter 56.1 ¶ 244 (citing Savad Decl. Ex. 2, at 86, 92).) A year after Robert Prol sent the aforementioned letter, Mayor Sanderson appointed him to the planning board. (Pis.’ 56.1 ¶ 235.)
• Trustee Sanderson, in an email to Trustee Yagel, provided draft language for an email blast' that included the need to “defeat any developers who plan to take over our village and our area.” - {Id. ¶ 281 (citing Savad Decl. Ex. 9 (Louie Dep. Tr.) 115-116)); (Defs.’ Counter 56.1 ¶281.) Trustee Sanderson also publicly stated that the Village needed to “maintain[ ] its cultural and religious diversity,” (Pis.’ 56.1¶ 284 (citing Savad Decl. Ex. 310 (Request for Admission) Response No. 106)), and highlighted her concern about the Orthodox Hasidic “bloc vote” because of its impact on the Ramapo School District, (see Pis.’ 56.1 ¶ 295 (citing, inter alia, Savad Decl. Ex. 11 (Sanderson Dep. Tr.) 155-56); -Defs.’ ■ Counter 56.1 ¶ 295.)
• Trustee Louie emailed a Village resident indicating that a goal of hers was to “[m]aintain[ ] the demographic makeup of the village the way it is.” (Pis.’ 56.1 ¶ 307 (citing Savad Decl. Ex. 9 (Louie Dep. Tr.) 139-140); Defs.’ Counter 56.1 ¶ 307.)
• The aforementioned Facebook post -and related text- messages between Mayor Yagel and Louie, concerning a gathering of Hasidic Jews at Provident Bank Ballpark, {see Savad Suppl. Decl. Ex. 1), and the associated adverse inference sanction.
It is worth noting that all of these statements were made despite evidence of an attempt to take care not to make incriminating statements, as Mayor Marshall indicated at the aforementioned January 22, 2007 meeting:
Ladies and gentleman, let me say something. We sitting at this table have limitations that are placed on us as to what we can say and what we can’t say, because our attorney tells us what wecan say and what we can’t. I can’t say what I feel, I can’t. If I agree with you, if I don’t agree with you, I don’t have the luxury of being able to say that here. All I can say is that every member of this board works very, very hard to do what is best for this community. You have your issues. Don’t assume because no one has gotten up and said, wow, I agree with you, oh boy; don’t assume that because we didn’t do that we don’t agree. We may or may not, but please give us the benefit of the doubt.
(Pis.’ 56.1 ¶416 (citing, inter alia, Savad Decl. Ex.' 78, at 58)); see also, Pis.’ 56.1 ¶ 422 (noting that in advance of a meeting, “Trustee Yagel warned Mayor Sanderson and Trustee Louie that they ‘[m]ust be very careful about what we say. Don’t know who’s in the audienbe. Savad might show up again.”) (citing, inter alia, Savad Decl. Ex. 105 (email from - Yagel)); id. ¶ 425 (“Trustee Yagel stated that the residents should make' sure that when they speak in public that they don’t speak in a discriminatory manner because that can be construed as ‘the village is discriminating.’ ” (quoting Savad Deck Ex. 239 (Affidavit of Laura M. Kramer) ¶ 10) (citing Savad Deck Ex. 4, at 189-90); Defs.’ 56.1 ¶ 425 (clarifying this statement).)
Third, the Village’s behavior with respect to other proposed projects is suggestive. For example, Trustee Sanderson opposed an Orthodox middle school on property outside the town in May 2007, indicating that it did “not sound good” and encouraging others to attend public hearings. (Pis.’ 56.1 ¶ 375 (citing Savad Deck Ex. 11 (Sanderson Dep.. Tr.) 224-26).) Additionally, as early as 1996, the Village Attorney, then Ruben Ortenberg, advised residents to contact the Town of Ramapo to object to the expansion of an Orthodox Hasidic school. (Pis.’ 56.1 ¶ 376.) At the same,time, the Village did not challenge a variety of secular development projects of equal size that may have “threatened” the Village in the same way. (See, e.g., Pis.’ 56.1 ¶¶ 381 (noting support for concept of Barr Laboratories office building); 399 (noting that Mayor Marshall encouraged the Village to accept the construction group homes and that residents “simply [did] not have the right to choose who [their] neighbors [would] be”).) Cf. LeBlanc-Sternberg,
Of course, not all' of the facts demonstrate discriminatory motives. Many of the statements post-date the laws in question, and some reflect concern about over-development of property in the Village. (See Defs.’ Mem. of Law in Reply to Pis.’ Opp’n to Defs.’ Mot. for Summ. J. (“Defs.’ Reply”) 6 (Dkt. No. 193).) And the Village, in the past; has shown a willingness in other contexts to facilitate religious land use; (See, e.g., id. at 7-8 (noting that Local Law 2 of 2007 for the first time allowed single-family residents to be used as houses of worship, as requested by ultra-Orthodox, Hasidic communities).) Taken together, though, in the light most favorable to the non-movant Plaintiffs, ,and given the unique burden the Challenged Laws place on Plaintiffs, there is sufficient
b. Discriminatory Effect
Plaintiffs also allege that the Challenged Laws had a discriminatory effect on them. In establishing discriminatory effect, Plaintiffs are not “obligated to show' a better treated, similarly situated group of individuals.” Pyke v. Cuomo,
Plaintiffs have established, at the very'least, that whether the Challenged Laws prohibit the building of a rabbinical college is an issue of material fact. Defendants offer a defense of the Challenged Laws but devote no more than a few conclusory paragraphs to the “neutral purpose[s]” of each law. (See, e.g., Defs.’ Mem. 45.) To the extent Defendants offer a substantive defense, it is addressed in the context of the relevant law below.
First, with respect to the Accreditation Law, educational institutions aré,- in general, permitted in the Village, provided those who intend to'build the institution obtain a special permit. See, e.g., Defs.’" Counter 56.1 ¶579 (citing Village Code § 130-10(F)). However, unaccredited educational institutions are not permitted under any circumstances, because an educational institution is defined by Village law as one that is “accredited by the New York State Education Department or similar recognized accrediting agency,” Village Code § 130-4. (See also Pis.’ 56.1 ¶¶ 580-81; Defs.’ Counter 56.1 ¶¶ 580-81.) Plaintiffs present expert testimony indicating that their proposed rabbinical college cannot be accredited by any New York State body, which Defendants do- not rebut with any evidence of their own. (See Pis.’ 56.1 ¶¶ 583-84, 591; Defs.’ Counter 56.1 ¶¶ 583-84, 591.) In fact, Defendants do not dispute that “[t]o be accredited” at all, an educational institution has to first be in existence and fully operational, (Pis.’ 56.1 ¶ 590; Defs.’ Counter 56.1 ¶ 590), placing Plaintiffs, and likely any other group that sought to build an educational institution in the Village, in a catch-22: they cannot build a rabbinical college unless it is accredited, and they cannot have their rabbinical college accredited until it is built, (see Pis.’ 56.1 ¶ 588-9; Defs.’ Counter 56.1 ¶ 589-89; Savad Decl. Ex. 16 (Preston Green Dep. Tr.) 49, 89-90 (noting that the relevant accredited bodies require institutions to be operational)). Indeed, the rabbinical college could not even be accredited by the Association of Advanced Rabbinical and Talmudic Schools (“AARTS”), -a body designed to accredit schools like the proposed rabbinical college, absent changes' to its curriculum 'and the rabbinical college being operational. (See Savad Decl. Ex. 16 (Green Tr.) 89-90r Gordon Aft Ex. 15 (Preston Green Witness Réport) at 20-21.) To that end, the Accreditation Law at least arguably prevents Plaintiffs from building their proposed rabbinical college.
Third, with regard to the Wetlands Law, two provisions, working in concert, have the apparent effect of barring construction of the rabbinical college in the Village. First, Village law provides that “[t]he minimum lot area for an educational institution” is-10 acres. Village Code § 130-10(F)(1)(a). (See also Pis.’ 56.1 ¶ 14; Defs.’ 56,1 . ¶ 14.) Plaintiffs argue, with sufficient 'evidentiary support, that the Subject Property is the only such non-government-owned property in the Village, meaning it is the only location where which the proposed rabbinical college can .be built. (Pis.’ 56.1 1Í.616 (citing Beall Decl. ¶¶ 15-19).)
Plaintiffs have proffered evidence of the existence of wetlands on the Subject Property, specifically wetlands covering the vast majority of the west side of the property abutting Route 306. (See Beall Decl. ¶ 280 & Ex. T (survey map of the Subject Property).) Based on a survey map, it appears that a driveway cuts between the wetlands on the Subject Property. (See id. Ex. T); see also Pis.’ 56.1 ¶¶ 618-620 (discussing wetlands on the Subject Property and their impact); Beall Decl. ¶¶ 280-89 (discussing wetlands on property in the context of state and federal regulations), Ex. T (property map identifying wetlands) (Dkt. No. 153); Tauber Decl. ¶28 (averring that the Wetlands Law renders the Subject Property inaccessible); Second Gordon Aff. Ex. A, at 61-63 (maps identifying wetlands on property). Plaintiffs, however, offer evidence that “the current access road” would have “to be improved” in order to be usable for the proposed rabbinical college because there is “no other practicable access location for the Property,” but that cannot be completed because the current driveway falls within 100 feet of the wetlands. (Tauber Decl. ¶ 5.) Plaintiffs have also proffered evidence, which Defendants do not rebut with any evidence of their own, that the Village was aware of the existence of wetlands on the Subject Property, (see Pis.’ 56.1 ¶ 180 (noting that Mayor Marshall knew there were wetlands on the property; Defs.’ 56.1 ¶ 180), such that it is plausible that Defendants targeted the rabbinical college with the Wetlands Law).
Two issues remain unresolved by the record, however. First, it is not clear from ' the record why Plaintiffs cannot build an entirely new entrance road off of Route 202, which is not abutted by wetlands.
In response to the fact that the Challenged Laws appear to have a discriminatory effect on Plaintiffs’ proposed rabbinical college, Defendants assert that Plaintiffs could potentially build a rabbinical college “through a zone change [or] a text amendment,” see Village Code § ISO-35 (power to amend), a “use variance,” see Village Code § 130-28(D) (variances), or a “special use permit;” see Village Code § 130-10, through which the Parties can work together “to bring to fruition something that is legal and beneficial to all involved,” (see, e.g., Defs.’ Mem. 3, 34-35, 41, 42.) First, as the Court previously noted, a zone change or text amendment is a “legislative process” that “Plaintiffs allege would be cumbersome and, given the hostility of Defendants, fraught with indefinite delay and uncertainty.” ' Tartikov,
c. Strict Scrutiny
If Plaintiffs are able to prove that the' Challenged Laws were passed with a discriminatory purpose and have a discriminatory effect, strict scrutiny would apply.. See United States v. Bannister,
A compelling state interest involves “some substantial threat to public safety, peace[,] or order,” Sherbert v. Verner,
Defendants contend that the Challenged Laws were passed “to retain [the Village’s] rural and residential character” and because of a “lack of enthusiasm for high-intensity development.” (Defs.’ Mem. 23.) With regard to the specific Challenged Laws: first, Defendants contend that the Dormitory Law was passed to “minimize[ ] the impact of . a non-residential use in a single-family district, including the effect on traffic and storm-water -systems,” (id. at 25),.and to comply with state.law, (id. at 24-25).
These explanations are insufficient to justify granting summary judgment to Defendants. In general, as discussed above, the stated aesthetic and community character rationales are generally not compelling state interests, and Defendants have not demonstrated that these interests are so overwhelming or gravely threatened by the institutions such as the proposed rabbinical college to render them compelling. Defendants cite only one case suggesting otherwise, Murphy v. Zoning Comm’n of Town of New Milford,
, Nonetheless, even if the Challenged Laws were justified by compelling interests, they would still fail to pass strict scrutiny because they are not narrowly tailored to serve those interests. See Turner Broad. Sys. Inc. v. F.C.C.,
First, Defendants have admitted that a generalized restriction on thé intensity and size of development would serve all of its allegedly compelling interests. (See Pis.’ 56.1 ¶ 709; Defs.’ Counter 56.1 ¶709.) While, as noted above, this is just the sort of generalized interest that does not justify a burden on religious exercise, see Gonzales,
Second, as noted above in the context of the Wetlands Law, Defendants admit that they commissioned no studies or experts when examining the need for the Challenged Laws, suggesting the . allegedly compelling interests may be an “afterthought effort to bolster a flimsily supported decision,” Westchester Day School,
Third, Village law already provides “several layers of regulation” to protect the interests at issue through operation of the special permit process for educational institutions. ■ (Pl.’s Mem. 36.) First, the Village Code provides that the Board of Trustees may, “impose ... restrictions and regulations” on educational institutions to “minimize traffic hazards, impairment of the Use, enjoyment or value of property in the surrounding area, or generally protect the health, safetyt,] and welfare of the neighborhood.” (Id. at 37 (internal quotation marks omitted).) See also Village Code § 130-10(F). Second, the Zoning Board of Appeals, in approving individual special use permit applications, may impose “reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit.” (Pis.’ Mem. 37 (internal quotation marks omitted).) - See also Village Code § 130-28(E)(1). Third, the permitting Board may attach “additional conditions and safeguards ... to ensure initial and continual conformance to all applicable standards and requirements” including “[t]he location and size of the special permit use, nature and intensity of the operations involved' in it or conducted in connection with it,” and ensuring that the use does not “change ... the character of the neighborhood.” (Pis.’ Mem. 37 (internal quotation marks omitted).) See also Village Code § 130-28(E)(6). Fourth, the Village Planning Board can “impose such reasonable conditions and restrictions as are directly related to and incidental to a proposed site plan,” and cannot approve a site plan unless it takes into account “public health, safetyt,] and general welfare” with respect to traffic, parking, and other aspects of development, (Pis.’ Mem. 37 (internal quotation marks omitted).' See also Village Code § 119-3(B)). Furthermore, as alluded to above, Article 24 of the New York State Environmental Conservation Law requires permitting from the New York State Department of Environmental Con
Fourth, specifically with regard to traffic, while -it is not always foreclosed as a compelling interest, see Westchester Day Sch. v. Vill. of Mamaroneck,
Fifth, there is no reason to believe, nor any evidence indicating, that accredited schools have a lesser impact on traffic, .aesthetics, or any other interest Defendants claim, as compared to unaccredited schools. (See Decl. of William D. Fitzpatrick ¶ 65 (Dkt. No. 152) (“[Tjraffic generation will be the same for an accredited facility and a non-accredited facility with an equal number of students).”.) Nor do Defendants offer any evidence that automobile schools are not capable of being accredited. (See Pis.’ 56.1 ¶ 759 (asserting that automobile schools can be accredited).) Regardless, given there are no .¡accredited—or unaccredited—schools in the Village, it is difficult to understand why accreditation suddenly became a concern for the Village, unless considered in light of the growth of the Orthodox Hasidic community in the Pomona area and the proposed rabbinical college. (Pis.’ 56.1 ¶ 723.) See Cottonwood Christian Ctr. v. Cypress Redev. Agency,
What all of these concerns make clear is that the justification for the discriminatory effect of the Challenged Laws' is hardly beyond dispute. The laws are structured such that they arguably carve out Plaintiffs’ use with questionable reasons for doing so, and general claims that the Challenged Laws are “reasonable limitations so that the expansion in the use would be consistent with the rural and residential
5. Free Exercise (Claim 1)
Plaintiffs also bring a claim under the Free Exercise Clause of the First Amendment. The First Amendment, which is applicable to the States by operation of the Fourteenth Amendment, “prohibits the enactment of any law prohibiting the free exercise of religion.” Bronx Household of Faith v. Cmty. Sch. Distr. No. 10,
Thus, to state a free exercise claim under the aforementioned Lukumi standard, a plaintiff must establish' that “the object of [the- challenged] law is to infringe upon or restrict practices because of their religious motivation,” or that the law’s “purpose ... is the suppression of religion or religious conduct.”' Lukumi,
“To determine the object of a law, [the Court] must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face.” Lukumi,
As the Court indicated in its 2013 Opinion and Order, “it is ... debatable that the above-mentioned animosity to the rabbinical college stemmed from ‘legitimate concern[s] ... for reasons quite apart from discrimination.’ ” Tartikov,
At the outset, as discussed in the next section in more detail, the Court notes that each of the Challenged Laws is facially neutral. As Defendants repeatedly point out, and as the Court previously found, the Challenged Laws, on their face, apply to all development projects and educational institutions. Tartikov,
6. Free Speech (Claim 2)
In their second cause of action, Plaintiffs allege that the Challenged Laws violate Plaintiffs’ right to free speech under the First Amendment. Plaintiffs move for summary judgment- “to the extent that [the] claim[] does not involve issues of discriminatory motivation,” (Pis.’ Mem; 4), and Defendants cross-move for summary judgment.
“When conducting First Amendment [free speech] analysis, courts examine' challenged governmental regulations to discern whether they are content based or content neutral since ‘the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech.’” Bd. of Managers of Soho Int’l Arts Condo. v. City of N.Y., No. 01-CV-1226,
Generally, if a law is content-based, “strict scrutiny applies and the municipality must show that the regulation is necessary to serve a compelling state in
[95-100] “The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys____A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers -or messages but not others.” Ward,
As noted above, each of the challenged laws is facially-neutral as to content. See Tartikov,
The Court previously held that Plaintiffs had barely “pled enough facts to establish that the rabbinieal college would engage in and foster expressive conduct.” Tartikov,
Defendants, citing the same two cases they cited at the inotion to dismiss stage, see id. at 624, contend that constructing a rabbinical college is not an act of free speech but instead only implicates the Free Exercise Clause, (see Defs.’ Mem. 52 (“[T]he act of building a house of worship, lét álone a religious sehool[,] does not implicate the Free Speech Clause; instead, courts'analyze zoning regulations limiting such construction under the' Free Exercise Clause, which addressés religiously motivated conduct.” (citing Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,
The case law supports a broad view of what can be considered speech. See, e.g., Kleindienst,
On the basis of Plaintiffs’ pleadings, the Court previously answered this question in the affirmative. Now that evidence has been gathered and provided to the Court, however, the Court is persuaded that the fact that building a rabbinical college might enable religious speech does not render its construction speech itself. See Adhi Parasakthi,
7. Free Association (Claim 3)
In their third cause of action, Plaintiffs allege that the Challenged Laws violate Plaintiffs’ right to free exercise of religion under the First Amendment. As with Plaintiffs’ Free Speech claim, Plaintiffs’ once again move for summary judgment insofar as the claim does not involve discriminatory motivation, (Pis.’ Mem. 4), and Defendants cross-move for summary judgment.
In- addition to -Freedom of Speech, the First Amendment also protects the Freedom of Association. See Baird v. State Bar of Ariz.,
In-evaluating a free association claim, “[t]he first question ... is whether and to what extent [the] defendants’ actions burdened that right.” Tabbaa v. Chertoff,
“Having found a cognizable burden,” the second question is “the appropriate level of scrutiny to employ, in evaluating [the] defendants’ actions.” Tabbaa, 509 F.3d at 102. “[A]n infringement on associational rights is not unconstitutional so long as it serves compelling staté interests, unrelated to the suppression of ideas, that, .cannot be achieved through means significantly-restrictive of associational freedoms.” Id. (brackets and internal quotation marks omitted). As discussed above, taking the facts in the light that is most favorable to Plaintiffs, a reasonably jury could conclude that Defendants’ stated interests are not compelling, and. that the Challenged Laws are not narrowly tailored to serve those interests. On the other hand, as discussed in the next section, taking the facts in the light most favorable to Defendants, it is plausible that the Challenged Laws do not burden Plaintiffs’ associational rights because they arguably may still-build, and associate at, a rabbinical college -in the Village, just not one of the exact design they desire. That is an issue for a jury, and not the Court, to sort out. Accordingly, summary judgment is denied to both Parties as to this claim.
8. RLUIPA Claims
a. Substantial Burden (Claim 5)
i. Substance of Claim
In their fifth claim, Plaintiffs .assert that Defendants have violated RLUIPA by unlawfully imposing a substantial burden on their religion. The Parties have filed Cross-Motions for summary judgment on this claim.
The Substantial Burden provision of RLUIPA
prohibits a governmental entity from applying a land use regulation “in a manner that imposes a substantial burden on the religious exercise of a person ... or institution, unless the government demonstrates that imposition of the burden ... is in furtherance of. a compelling governmental interest; and .. •. [the burden imposed] is the least restrictive means of furthering that compelling governmental interest.”
WDS I,
“The statute defines ‘religious exercise’ to include ‘any exercise of religion, whether or not compelled by, or central, to, a system of religious belief,’ and provides further that ‘[t]he usé, building, or conversion of real property for the purpose of religious exercise shall be considered ... religious exercise.’” WDS I, 386 F,3d at 186 (alterations in original) (quoting 42 U.S.C. § -2000cc-5(7)(A), (B)); see also Sts. Constantine & Helen,
While RLUIPA does not itself define the phrase “substantial burden,” the Second Circuit has held that a land use regulation constitutes a “substantial burden” within the meaning of RLUIPA if it “directly coerces the religious institution to change its behavior.” WDS II,
While RLUIPA does not exempt religious institutions from complying with facially neutral permit and variance applications procedures, it does not wholly exempt zoning laws from scrutiny. Rather, RLUIPA - protects religious institutions from land use regulations that substantially .affect their ability to use their property in the exercise of their religion. See Fortress Bible,
Courts have likewise found a substantial burden requirement where municipal zoning schemes impose significant “delay, uncertainty, and expense.” Sts. Constantine & Helen,
The Court’s analysis of the discriminatory effect prong of Plaintiffs’ Equal Protection claim, and the Court’s discussion of Plaintiffs’ Free Exercise claim, see WDS II, 504 F.3.d at 348-49 (noting that the test for a substantial burden is guided by Free Exercise jurisprudence), apply here. While unnecessary to establish a substantial burden, see Tartikov,
Further, as discussed above, Defendants have failed to demonstrate as a matter of law that their passage of the Challenged Laws was justified by compelling state interests and that the laws were the least restrictive means of furthering those interests. See 42 . U.S.C. § 2000ec(a)(l). The fact that Defendants may, in general, allow other religious and educational uses in the Village is irrelevant. See Hobbs,
The question of whether Plaintiffs’ are entitled to summary judgment on their substantial burdén claim is a closer one. Certainly, “religious institutions do not have- a constitutional right to build wherever they like.” Fortress Bible,
With regard to the necessity of building a rabbinical college exactly as proposed (to the extent Plaintiffs have even offered a proposal), as discussed above, there are three other rabbinical colleges in the general area: Kollel Belz, Mechón L’Horoya, and Kollel Beth Yechiel Mechil of Tarti-kov; (Pis.’ 56.1 ¶¶ 563-571; Pis.’ Counter 56.1 ¶ 57; see also Savad Decl. Ex. 34 (Resnicoff Dep. Tr.) 19-22 (noting that-“Tartikov in Brooklyn and Mechón L’Ho-roya train rabbinical judges” but students do not live on campus).) As outlined, however, there are several differences between the programs at these schools and that which is proposed by the Congregation. Kollel Belz and Mechón L’ Horoya “only teach[] certain sections of the Shulchan Aruch,” which two individual Plaintiffs contend means these schools cannot train full-time rabbis, while Kollel Beth Yechiel Mechil of Tartikov simply “has a different program.” Kollel Belz and Kollel Beth Yechiel Mechil of Tartikov have no libraries or mikvahs on campus (and Kollel Beth Yechiel Mechil of Tartikov lacks a synagogue), and none of the three schools has on-campus housing, meaning none can pro
Defendants, of course, contest these claims. They allege that Plaintiffs have not articulated any religious belief that requires a Torah Community, never mind a rabbinical college that has mikvahs on campus. (Defs.’ 56.1 ¶ 46; Pis.’- Counter 56.1 ¶¶ 49, 516, 520.) They also repeatedly cite a portion of the deposition of M. Menc-zer in which he admits that it is possible to “study to become a rabbinical judge in a synagogue” without being immersed in a Torah Community, though M. Menczer also makes clear that to be a “Great Torah scholar,” a student has to “dedicate [himself] to a certain kind of study program, study day and night, [he has] to surround [himself] [with] Torah students, and [he has] to exclude [himself] from all worldly pleasures, all distractions,” and that this is a “requirement” under Jewish law, even though not necessary to ordination as a rabbi. (Savad Decl. Ex. 26 (M. Menczer Dep. Tr.) 88-90.) Given Plaintiffs do not allege a complete lack of ordained rabbis in the region, and other schools do produce rabbinical judges—even if they are not “Great Torah scholars” or full-time rabbinical judges—whether Plaintiffs require a rabbinical college exactly as proposed is at least a disputed issue of fact. Based on the credibility of witnesses at trial, a reasonable jury may find that a Torah Community, while ideal, is not essential to Plaintiffs’ exercise of .their religious beliefs, and that training a number - of part-time rabbis would be sufficient to .meet the Plaintiffs’ need for rabbinical judges in the Pomona area, such -that the Challenged Laws do not impose a substantial burden.
In this context, it is worth noting that the precise contours of the rabbinical college the Congregation proposes is far from clear. The only curriculum document, as noted above, was prepared by a student apparently due to the existence of the instant Action, (see Defs.’ 56.1 ¶¶ 26-28; Pis.’ Counter 56.1 ¶¶ 26-28; Gordon Aff. Ex. 10, at 23; see also Gordon Aff. Ex. 21 (proposed curriculum)), and it provides no specific information about the anticipated curriculum—the Shulchan Aruch—beyond the names of a series of classes (e.g., “Kosher Diet,” “Prayer,” “Renting, Leasing & Borrowing”), (see Gordon Aff. Ex. 22), Additionally, there is no architectural plan for the rabbinical college contained in -the record beyond a “preliminary concept plan,” (Defs.’ 56.1 ¶¶ 19, 22; Pis.’ Counter 56.1 ¶22), nor has any such plan been formally submitted to the Village for approval, (see Savad Decl. Ex. 27, at 120). Unsurprisingly, therefore, no teachers have been hired, and the dean admits having done “nothing” so far to begin the hiring process, (See Defs.’ 56.1 ¶¶ 14, 34-35, 66.) Accordingly, it is difficult for the Court to determine, before sending the case to a jury, that the Congregation’s
Of course, even if Plaintiffs cannot prove that their proposed rabbinical college is essential to their religious exercise, if no rabbinical college of any kind is compatible with the Challenged Laws, then the Challenged Laws may unlawfully impose a substantial' burden. With regard to the Dormitory Law, it is clear, as outlined, that three other rabbinical colleges in the area train students without on-campus housing. Therefore, the Dormitory Law arguably is not a substantial burden on the operation of a rabbinical college. With regard to the Accreditation Law, as discussed above, it is undisputed that the proposed rabbinical college as currently proposed cannot be accredited by the State of New York or AARTS because, among other reasons, it is not a degree-granting institution and is not yet operational. (See Pis.’ 56.1 ¶¶ 580-81, 583-84. 591; Defs.’ Counter 56.1 ¶¶ 580-81, 590.) Nonetheless,. Plaintiffs’ expert makes clear that, at least in general “a higher education institution that trains Rabbinical Judges can be accredited.” (Gordon Aff. Ex. 15 (Preston Green Expert report), at 18.) Indeed, the expert makes clear that, with modifications to the proposed rabbinical college curriculum and admission requirements, the proposed rabbinical college could at least be accredited by AARTS (though the college would still need to be operational first). (See Pis.’ 56.1 ¶ 594, 596, .598-99, .601-02; Savad Deck Ex. 16 (Green Dep. Tr.) at 89-90; Gordon Aff. Ex.-15 (Preston Green Witness Report) 20-21.) In fact, Plaintiffs’ expert’s suggestion is along these lines:
[I]f the educational institution meets all other criteria for accreditation, Pomona can grant Tartikov a conditional use variance that would permit the school to become operational on the condition that the school obtain accreditation in a reasonable time from the Board of Regents or similar accrediting body. Failure to obtain accreditation could result in the variance[ ] being annulled and set aside.
(Gordon Aff. Ex. 15, at 20.) Accordingly, the Court cannot conclude, as a matter of law, that the Accreditation Law prevents the construction of a rabbinical college in the Village.
With regard to the Wetlands Law, as discussed above, Plaintiffs have offered evidence of the existence of wetlands covering the west side of the Subject Property along Route 306 and that the access road that runs through the west side would have to be improved for the proposed rabbinical college to be usable. (See Beall Deck ¶280 & Ex. T (survey map of the Subject Property); Tauber Deck ¶¶ 5, 28; see also Pis.’ 56.1 ¶ 180 (indicating that Mayor Marshall was generally aware of the existence of wetlands on the Subject Property); Defs.’ Counter 56.1 ¶ 180 (same).) However, as noted above, there are holes in Plaintiffs’ claim that the Wetlands Law imposes a substantial burden, namely (a) a lack of evidence that Plaintiffs cannot build an access road through the other side of the property, from Route 202, and (b) the possibility that the Wetlands Law is duplicative of state and federal regulations. If the Wetlands Law does not prevent the construction of an access road, or otherwise does not create an additional burden beyond that created by state and federal law, then' it does not impose a substantial burden on Plaintiffs’ religious exercise.
Accordingly, because a series of disputed material facts remain as to (a) the exact form the rabbinical college must take.in order to be sufficient for Plaintiffs’ exercise of religion, and (b) to what extent the
ii. Constitutional Challenge
Defendants also challenge the constitutionality of RLUIPA’s substantial burden provision. (Defs.’ Mem. 54-59.) , While the courts, as the United States points out, normally avoid addressing constitutional questions when possible, see Allstate Ins. Co. v. Serio,
Defendants contend that the substantial burden provision is unconstitutional on its face because it “distorts] the relationship between the local and state governments and the federal government in violation of settled federalism principles,” relying on the “Tenth Amendment’s limitations on Article I power,” and further argue that the provision is “beyond the power of Congress, a violation of the separation of powers, and the Establishment Clause.” (Defs.’ Mem. 55 (citing Congregation Kol Ami v. Abington Twp.,
In response, Plaintiffs rely, in principal, on the. Second Circuit’s decision in WDS II. (See Pis. Opp’n 57.) In that .case, the Second Circuit held,, among other things, that RLUIPA does not violate the Tenth Amendment because.it “leaves it to .each state to enact and enforce land use regulations as it deems appropriate so long as the state does not substantially burden religious exercise in the absence of a compelling interest achieved by the least restrictive means,” WDS II,
Additionally,, Plaintiffs properly characterize Defendants’ theory of unconstitutionality as relying only on the proposition that “local governments engage in land use regulation” and that “Congress is powerless to regulate in that sphere,” which Plaintiffs correctly point out would “render innumerable federal statutes” that affect local land use unconstitutional, including the Americans with Disabilities Act, Fair Housing Act, and Clean Water Act. (Bis.’ Opp’n 57-58.) See also United States v. Maui Cty.,
Defendants do not respond to either of these contentions, nor do they claim that any of the jurisdictional elements of RLUIPA’s substantial burden provision is not met here; they only indicate that they “stand by their facial challenge” in their reply. (Defs.’ Reply 19.) Accordingly, the Court finds that the governing case law supports the conclusion that RLUIPA, because of its jurisdictional provision and as has already been determined by the Second Circuit, constitutes a proper constitutional exercise of Congress’ power and does not run afoul of any constitutional provisions. See Sossamon,
Apart from their facial challenge, Defendants also contend that, as applied, the substantial burden provision is unconstitutional because, more than asking the court to “ ‘become [a] super land-use board[ ] of appeals,’ ” (Defs.’ Mem. 59 (quoting Sameric Corp. v. City of Phila.,
In response, Plaintiffs insist that they do not seek the Court’s approval of their plan without proceeding through the
At its core, the Court finds that Defendants’ fleeting as-applied challenge, which does not appear to be meaningfully different from its facial challenge, is wanting of legal authority. See Lima v. Hatsuhana of USA, Inc., No. 13-CV-3389,
b. Discrimination and Exclusion
i. Equal Terms (Claim 6)
In their sixth claim, Plaintiffs assert that Defendants have violated RLUI-PA by unlawfully imposing a land use regulation that treats the proposed rabbinical college on less than equal terms with nonreligious institutions. Unlike Plaintiffs’ other RLUIPA claims, only Defendants have moved for summary judgment on this claim. (See Pis.’ Mem. 4.) The Equal Terms provision of RLUIPA provides that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(l). This “statutory command ‘requires equal treatment of secular and religious assemblies and allows courts to determine whether a particular system of classifications adopted by a city subtly or covertly departs from requirements of
As the Court explained, in its 2013 Opinion and Order, there are four fundamental elements of an Equal Terms claim: (1) the plaintiff must be a religious institution; (2) subject to a land use regulation; that (3) treats the religious institution on less than equal terms; with (4) a nonreligious institution. See Primera,
With that division in mind, the consensus among courts is that there are three distinct kinds of Equal Terms violations: (i) a statute that facially differentiates between religious and secular assemblies or institutions; '(ü) a facially neutral statute that is: nevertheless “gerrymandered” to place a burden solely on religious, as opposed to secular, assemblies or institutions; and (iii) a truly neutral statute that is selectively enforced against religious, as o'pposéd to secular, assemblies or institutions. See Primera,
While, as discussed above, the Challenged Laws are facially neutral, the Court previously found that Plaintiffs had only stated a “gerrymander” claim, and Plaintiffs have not provided any evidence—or advanced any claim—to support a different theory here. Tartikov,
ii. Nondiscrimination (Claim 7)
The Court denies summary judgment to Defendants’ on Plaintiffs’ Nondiscrimination claim “for the same reasons” as its Equal Terms claim because “the elements of a Nondiscrimination claim differ little, if at all, from an Equal Terms claim.” Tartikov,
Hi. Exclusions and Limits (Claims 8-9)
The exclusions and limits provision of RLUIPA provides that “[n]o government shall impose or implement a land use regulation that .■.. (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3). The purpose of this provision “is not to examine the restrictions placed on individual landowners, but to prevent municipalities from broadly limiting where religious entities can locate." Adhi Parasakthi,
. As noted above, it is at least arguable that the effect of the Challenged Laws is to completely exclude the rabbinical college from the Village and that pursuing a text amendment or the like is futile. See Rocky Mountain,
10r Remaining Claims/Defenses
a. Fair Housing Act (Claims 11 and 12)
The FHA “prohibits governmental agencies from implementing, or enforcing housing policies in a discriminatory manner,” Tsombanidis v. West Haven Fire Dep’t,
b. Berenson (New- York Common Law) (Claim H)
Plaintiffs allege that Defendants violated the Berenson doctrine by “not considering] the present regional housing needs of the region in which the Village is located, and that, such regional housing needs are not otherwise adequately provided for,” namely those “in need of adult student housing or those who can only afford low or moderate income housing in the Village and in the region in which the Village is located.” (SAC ¶¶ 292-94.) Accordingly, Plaintiffs contend that Defendants “either acted for an exclusionary purpose, or the Zoning Code ... brought about an exclusionary effect.” (Id. ¶ 295.) They call on the Court to direct Defendants “to provide a comprehensive zoning plan to meet the regional needs and the requirements of the Jewish community seeking religious education, and to provide for multifamily housing that can provide affordable housing to Plaintiffs and others
Berenson provides that “[i]n determining the validity of an ordinance excluding multifamily housing as a permitted use, [the court] must consider the general purposes which the concept of zoning seeks to serve. The primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s available land.” Berenson v. Town of New Castle,
Defendants are correct that “discovery has uncovered no facts showing there are regional needs for fair housing.” (Defs.’ Mem. 54.) Indeed, the only evidence that Plaintiffs identify, in a single paragraph supporting their Berenson claim, is a fact that they claim Defendants admit: a need for affordable, multifamily housing in the Village’s Master Plan. (Pis. Opp’n 57 (citing Pis.’ 56.1 ¶ 26).) However, Defendants explicitly dispute this “fact,” (Defs.’ • Counter 56.1 ¶ 26), and Plaintiffs overstate the evidence: Ulman only indicated in her deposition that “mul-ti-family housing [w]as something to be looked at for future use within the Village,” (Savad Decl. Ex. 12, at 180-81), that the Master Plan itself only notes a need for “housing to accommodate an aging population and small families ” (Savad Deck Ex. 151 (Village of Pomona Master Plan Update) 21 (emphasis added)), and that it would be “inappropriate” to “increase[ ] development density” in order to create “affordable housing,” (id. at 22). In fact, Defendants argue in their Reply that there is adecjuate multi-family housing nearby in Ramapo and in the region, (Defs.’ Reply 19 (citing Pis.’ 56.1 ¶ 138)), though, granted, the only evidence offered for that assertion is the existence of the ASHL.
As discussed above, however, the Berenson test is disjunctive. Cf. N. Shore Unitarian Universalist Soc., Inc. v. Inc. Vill. of Upper Brookville,
c. Remaining State Claim
The only remaining claim is claim 10 (Article 1 §§ 3, 8, 9 and 11 of the New York State Constitution), which concerns freedom of worship, assembly, and equal protection. (SAC ¶¶ 274-75.)
Plaintiffs also pair their ánalysis of their § 8 claim with their Free Speech claim, noting that the New York Constitution “provides additional protection for expression and expressive activity.” . (Pis.’ Mem. 27.) As noted in the Court’s 2013 Opinion and Order, and as Defendants point out, “the corollary provisions for the First Amendment’s Free Speech and Free Association Clauses in the New York Constitution,” namely §§ 8 and 9, “are interpreted consistently with the Federal Constitution,” Tartikov,
d. Affirmative Defenses
Plaintiffs also move for “summary judgment dismissing Defendants’ affirmative defenses,” (Pis.’ Mem. 57.) Defendants concede that their third, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, twenty-third, twenty-fourth, and twenty-fifth affirmative defenses can be dismissed. (See' Defs.’ Opp’n 41-46.) Likewise, Defendants’ first (failure to state a claim), second (standing), fifth (lack of case or controversy), sixteenth (constitutionality of RLUIPA), twenty-sixth (failure to assert facial challenge), and twenty-seventh (residential or housing use is not an exercise of religion or religion use) defenses have already been addressed, and explicitly or implicitly rejected, in this Opinion and Order and the Court’s 2013 Opinion and Order. (See Defs.’ Answer (Dkt. No. 55); see also Defs.’ Opp’n 41 n. 26 (noting that Defendants’ affirmative defenses were stated in the Answer filed as Docket Number 55).) Accordingly, - the only affirmative' defenses that remain in dispute are Defendants’ sixth (failure to exhaust), fourteenth (unclean hands), and twentieth, twenty-first, and twenty-second (immunity).
Regarding exhaustion, Plaintiffs argue that “[e]xhaustion is not required where the questions presented include facial challenges to legislation, dr for claims brought under 42 U.S.C. § 1983.” (Pis.’ Mem. 60 (citing Oestereich v. Selective Serv. Bd.,
The Court concludes that exhaustion is not required for Plaintiffs’ remaining claims, as the overwhelming weight of authority indicates that exhaustion is not required for facial ehallengés. See Lamar,
Regarding unclean hands, Plaintiffs contend that the defense only applies “where the misconduct alleged as the basis for the defense ‘has immediate and necessary relation to the equity that [the plaintiff] seeks in -respect of the matter in litigation.’ ” (Pis.’ Mem. 58-459 (quoting Keystone Driller Co. v. Gen. Excavator Co.,
Regarding immunity from damages, Plaintiffs contend that because they do not seek monetary damages, Defendants’ affirmative defenses based on claims of immunity from damages fail. (Pis.’ Mem. 60.) In response, Defendants argue that the defenses—absolute immunity and qualified immunity—do not bar only damages claims. (Defs.’ Mem. 60.) This is only half-correct; While absolute immunity bars claims for damages and injunctive relief, see Montero v. Travis,
Keeping this framework in mind, Defendants’ immunity-based affirmative defenses fail for two reasons. First, Plaintiffs are suing the individual Defendants in their official capacities, and therefore they are not entitled to any immunity that the Village does not also possess, meaning they cannot claim qualified or absolute immunity. See Schubert v. City of Rye,
III. Conclusion
The Court grants summary judgment to Defendants as to Plaintiffs’ Free Speech and corresponding Article 1, § 8 New York Constitution claims, and the Court grants summary judgment to Plaintiffs on Defendants’ affirmative defenses noted herein. The Court denies summary judgment to all Parties as to all other claims, grants Plaintiffs’ Motion for Sanctions, and grants Defendants’ Motion to Strike in part. The Clerk of the Court is respectfully directed to terminate the pending motions. (Dkt. Nos. 137,140,195.)
SO ORDERED.
. The following facts are derived from undisputed portions of the Parties' Rule 56.1 Statements, uiiless otherwise noted. The Court has reviewed the evidence offered in support of certain disputed statements, as noted, where applicable, below.
. Beyond the Torah Community being part of Plaintiffs’ "religious belief," (Pis,’ 56.1 ¶ 539), Plaintiffs allege a variety of benefits attendant to studying in a Torah Community, including the ability to study day and night, to isolate oneself from outside influences, and to study all four books of the Shulchan Aruch. (See, e.g., Pis.’ 56.1 ¶¶ 449-457, 459-469, 473, 529-30, 655; Defs.' 56.1 ¶49.)' Defendants dispute the necessity of a Torah community, as well as the purported need for libraries and mikvahs on campus. (Defs.’ Counter 56.1 ¶¶ 449-457, 459-469, 473, 516, 520; Defs.’ 56.1 ¶ 46.)
. Kollel Beth Yechiel Mechil of Tartikov also has no synagogue, libraries, or mikvah on campus. (Defs.’ 56.1 ¶¶ 62-64.) Moreover, J. Hershkowitz and C. Rosenberg aver that their studies at Kollel Belz "will not allow [them] to become a full-time rabbinical judge[s]” because they cannot "learn the entire four categories of Jewish Law” at Kollel Belz. (Decl. of Jacob Hershkowitz ¶¶ 42, 44. (Dkt. No. 146); Decl. of Chaim Rosenberg ¶¶ 44-46 (Dkt. No. 149).) ' .
It is not clear from the record how different the programs at these other schools are from the putative rabbinical college in this case. Tauber, for example, characterized Mechón L’Horoya Kollel Beth Yechiel Mechil of Tarti-kov as providing “the same course of study” as that of the proposed rabbinical college and noted that a student at Kollel Beth Yechiel Mechil of Tartikov can "get the same studies done” as a student at the proposed rabbinical college. (Savad Deck Ex. 27 (Tauber Dep. Tr.)44, 46.)
. Yeshiva. Spring Valley had been granted tax exempt status that year, and in subsequent years through 2003. (Pis.’ 56.1 ¶ 324; Defs’ Counter 56.1 ¶ 324.)
Yeshiva Spring Valley only filed a formal application for a "25-lot single-family, residential development,” together with a Yeshiva, in June 2001. (Defs.’ 56.1 ¶ 104.) It subsequently failed to submit an environmental study required for a New- York State Environmental Equality Review Act, determination. (Id.)
. It bears noting that there were no schools in the Village at the time, (See Pis.’ 56.1 ¶ 129.)
, In the interim, namely from December 2002 through 2004, the Parties dispute whether the Board of Trustees actively supported the incorporation of Ladentown, which Plaintiffs contend was a response to the proposed development of adult student housing for the Orthodox Hasidic Jewish community at a site called Patrick Farms, (see Pis.’ 56.1 ¶¶ 136, 313, 368-72; Defs.’ Counter 56.1 ¶¶ 136, 313, 368-72), though the Parties agree that Ulman "performed' free legal work for the appeal regarding the efforts to incorporate Laden-town," (Pis.’ 56.1 IF 373.)
. The Parties dispute the exact day on which the Subject Property was purchased in August. Plaintiffs’ claim it was purchased on August 4, 2004, (Pis.’ 56.1 ¶ 101), while Defendants contend it was purchased on August 17, 2004, (Defs.’ Counter 56.1 ¶ 101 (citing Savad Decl. Ex. 291).) Plaintiffs admit their error in their Counter Rule 56.1 Statement. (Pis.’ Counter 56.1 ¶ 17.)
Additionally, while the Village denied Yeshiva Spring Valley tax exempt status in 2004, the local Humane Society did receive a tax exemption despite not having "timely filed its application for exémption." (Pis.’ 56.1 ¶ 380.)
. The Adult Student Housing .Law "permits married, adult, student, multi-family, high-density housing in single-family residential zones ... in the unincorporated portion of Ramapo." Vill. of Chestnut Ridge v. Town of Ramapo, No. 07-CV-9278,
. On November 8, of that year, the Village resolved not to oppose an agricultural project outside the Village because it was the "policy of the village” not to comment on projects that did "not directly affect the Village.” . (Pis.’ 56.1 ¶ 37; Savad Decl. Ex, 185 (Board of Trustees Meeting Agenda) 2.)
. The Village also denied the Congregation’s application for tax exempt status that year. (Id. ¶ 323.) '
. There remained no schools in the Village at the time. (Pis.' 56.1 ¶ 172.)
. While Plaintiffs fail, pursuant to Local Rule 56.1, to support this statement with admissible evidence, Defendants admit its contents in its responses to subsequent statements. See Defs.’ Counter 56.1 ¶¶ 273 (admitting timing of campaign), 270 (admitting that Mayor Marshall served as Mayor, and Alan Lamer as Trustee, during the campaign), 274 (admitting that Sanderson, Louie, and Yagel ran on a ticket together).
. As noted, R-40 refers to residential district zoning, requiring a minimum of 40,000 square feet per lot.' (See Pis.’ 56.1 ¶ 4.) See also Village Code § 130-5.
. Plaintiffs appear to have filed an identical version of their Second Amendment Complaint on two occasions. (See Dkt. Nos. 27, 28.)
. In response, (see Defs.’ Counter 56.1 ¶ 102), Defendants cite only the Congregation’s Certification of Incorporation, which does not mention the Subject Property but does indicate that the Congregation was in- . corporated “[t]o establish, maintain!,] and ponduct a school ... of the holy Torah and to maintain classes for the teachings of the customs, traditions!,] and mode of worship of the Jewish Orthodox faith,” (Gordon Aff. Ex. 18, at unnumbered 2.)
. In fact, Plaintiffs contend that the dormitories are not an "accessory” use at all, but rather a component of the primary use: the rabbinical college itself. (See Pis.’ Mem. 6 n. 7.)
. The Court below addresses the question of whether the Wetlands Law changed the regulatory environment with respect to Subject Property,
. Louie claims that, as a women's rights activist, she objected to an "all-male gathering being held at a municipal facility, where women were not permitted' to attend,” and that she did not think it the Facebook post was relevant to the this Action. (See Decl. of Rita J. Louie ("Louie Sanctions Decl.”) ¶¶ 14-17 (Dkt. No. 201); see also Defs.’ Sanctions Opp’n 2.)
. Mayor Yagel avers that he did not believe the post "reflected a religious animus” or was relevant to the instant Action but that he was worried that the post would be mischaracter-ized as anti-Semitic by Plaintiffs. (Yagel Sanctions Decl. ¶¶ 16-17.)
. Additionally, on the basis of these texts, and the fact that they were sent on Friday, May 10, Plaintiffs determined that the exchange occurred on Friday, May 10, 2013. (Pis.’ Sanctions Mem. 4 n. 2.)
. The Court does not take a position on whether Yagel intentionally lied when making this certification. As discussed below, even if Yagel did not believe the evidence was relevant, his bad faith is evidenced .by the fact that, as he explained in his Facebook post, he still sought ensure that Plaintiffs did not discover it.
. The Court recognizes that a recent amendment to Federal Rule of Civil Procedure 37, subdivision (e) provides that
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C)dismiss the action or enter a default judgment.
While the amendment, as Defendants admit, does not take effect until December 1, 2015, (Defs.’ Sanctions Opp’n 8 n. 10), it would "abrogate Residential Funding insofar as it holds that sanctions may be appropriate in instances where evidence is negligently destroyed.” Sekisui Am. Corp. v. Hart,
. Defendants assert that this argument ' “holds no sway in this case," but they do not explain why. (Defs.’ Sanctions Opp’n 14.) . As discussed .below, .and as explained by Plaintiffs in their Reply, (see Pis.' Sanctions Reply 7-8), whether Plaintiffs' efforts to obtain a text amendment would be futile is a material fact in this Action.
. Defendants’ assertion that the Facebook post is not covered by Plaintiffs’ Document Request No. 53 is not credible. (See Defs,' Sanctions Opp’n 14-15.) The fact that the individuals at issue in Louie’s post are Hasidic -and/or Orthodox Jews does, by its very nature, render it a comment "concerning” Hasidic and/or Orthodox Jews.
. Defendants' assertion that the' text messages are not covered by Plaintiffs’ Document Request No. 45 also is not credible. (See Defs.’ Spoliation Opp’n 15.) By virtue of referencing how Plaintiffs may use the post to show discriminatory animus in the passage of the Challenged Laws to prevent the construction of the proposed rabbinical college, they clearly relate to the proposed rabbinical college.
. While Defendants suggest that Magistrate Judge George A. Yanthis limited production of post-2007 -materials to those pertinent to the Village's interest in passing -the Challenged Laws, (see Defs.’ Sanctions Opp’n 15), the Court’s reading of Judge Yanthis’s Order is
. While the Court ultimately finds consideration of the alleged "pattern” of misconduct unnecessary in determining the appropriate sanction" for the primary misconduct alleged in Plaintiffs’ Motion, the other allegations Plaintiffs make are (a) not raised as independent grounds for sanctions, (b) suspect given, as Defendants point out, if Plaintiffs were concerned about Defendants’ behavior, “they should have raised [the] concern in the spring of 2013 or, at the latest[,] in the summer of 2014," when they were first aware of these issues, (Defs.’ Sanctions Opp’n 18), and (c) satisfactorily explained by Defendants, with the possible exception of Defendants' delay in issuing the litigation hold (which Plaintiffs have not demonstrated was prejudicial), (see id. at 19-23).
. ' Plaintiffs have until October 31, 2015 to submit evidence of the attorneys’ fees they seek. Defendants will have two weeks from the date of Plaintiffs’ submission to respond.
, There is also a unique issue with Plaintiffs’ Supplemental Rule 56.1 Statement, namely that it references a ■ large number of statements. posted anonymously on websites and blogs. (See Pis.' Counter 56,1 97-110 (Pis.’ Suppl. Statement of Facts ("Pis.’ Suppl. 56.1”)) ¶ 4.) Because the speaker in each' of those anonymous statements is unidentifiable, it is not clear if the. statements at issue can be traced to anyone affiliated with the Village. The Court therefore finds them irrelevant and will disregard them.
Additionally, in their Reply, Plaintiffs'argue that Defendants did not meet their “obligations” in opposing Plaintiffs' Rule 56.1 Statements, such that large portions of it should be deemed admitted. (Pis.’ Reply 4.) Plaintiffs fault Defendants for "reciting verbatim the evidence already relied upon by Plaintiffs and/or recharacterizing or restating the cited evidence, including adding irrelevant facts or legal arguments.” (Id.) While Defendants are under no obligation to cite different evidence in support of their counter-statements—indeed, they may simply maintain that the evidence cited by Plaintiffs does not support the proposition in the -statement at issue—the Court, as discussed below, will discount any statements it deems irrelevant or that cpnstitute legal argument.
. For example, an expert may testify about the relevant statutory or regulatory framework. See, e.g., Bilzerian,
. The same applies to Defendants' relevance challenge to the declarations of the individual Plaintiffs and that of Plaintiffs' expert, Steven H. Resnicoff,' an expert in Jewish religion and law.
. The Court also found motive to be relevant to Plaintiffs’ facial challenges, which Defendants do not contest at this'stage of the litigation. See Tartikov,
. As the Tenth Circuit explained, even after Salerno, the Supreme Court "has repeatédly considered facial challenges simply by apply- . ing the relevant constitutional test to the challenged statute without attempting to conjure up whether or not there is a hypothetical situation in which application of the statúte might'be valid.” Doe,
. The Court recognizes that Defendants note the first portion of the Dormitory Law was passed before Defendants became aware of the Congregation’s purchase of the subject property in November 2004. (Defs.’ Mem. 27; see also Pis.’. 56.1 ¶ 148-49; Defs.’ 56.1 ¶ 116.) This fact, however, does not place Plaintiffs’ equal protection claim outside of the zone of disputed facts.
. As laid out below in the context of comments made outside of this particular meeting, contrary to Defendants’ objections, statements by community members, even if not a part of die decisionmaking body, are relevant in assessing discriminatory purpose, see Tsombanidis v. West Haven Fire Dep’t,
. Of note, a number of the statements Plaintiffs cite do not indicate discriminatory animus, but rather indicate the degree of opposition to the rabbinical college, of indicate that the reason for the opposition was (and is) the rabbinical college’s size. (Compare, e.g., Pls’. 56.1 ¶ 231 (noting that Lynn Yagel stated "there is no hope for Rockland Cotmty due to RLUIPA development!’ with Savad Decl. Ex. 11 (L Yagel Tr.) 127 (noting that the statement referred to “overdevelopment”).) While . these statements are relevant to whether the rabbinical college was targeted, they do not themselves reveal a discriminatory purpose. Nonetheless, there is enough other evidence to suggest a discriminatory motive to send , this case to a jury to determine if the Challenged Laws were motivated by discriminatory animus.
. The Court disagrees with Defendants’ assertion that Cook's motives are irrelevant because he was not employed by the Village when the laws were passed. The Village's perception of the Hasidic community after the passage of the Challenged Laws is at least circumstantial evidence ’that is suggestive of the Villages’ prior views'. Cf. Arlington Heights,
Additionally, Plaintiffs contend that references to "diversity” are "code for keeping Hasidic and Orthodox Jews out of the Village because the people making these statements know that there are few Orthodox Jews and no Hasidic Jews in the Village.” See McWright v. Alexander,
. Plaintiffs also indicate that the Village challenged other Yeshivas, (Pis.’ 56.1 ¶¶ 360, 363, 376; Pis.' Supplemental 56.1 ¶¶ 23-25), yet did not challenge a large agricultural operation because it did not want to "get involved” in other villages’ affairs, (Pis.’ 56.1 377-78.) In fact, in one instance, the Village' did not object to an assisted living facility located just outside the Village yet encouraged residents to oppose a Yeshiva on the same property when’proposed. ''(Pis, 56.1 ¶¶ 374-75, 401.) • •
. Because the evidence above is sufficient for Plaintiffs’ claim to survive summary judgment, the Court need not consider the claim that the Village is closely entwined with the Preserve Ramapo organization.
. Defendants allege, in response, that the "dormitory regulations expanded opportunities for dormitories and were enacted for the neutral purpose of conforming the village code with New York case law.” (Defs.’ Mem. 46.) First, the fact that dormitory use was permitted in such a way as to carve out Plaintiffs’ plan for dormitories at the proposed rabbinical college means it has a discriminatory effect; by design, some individuals bene-fitted, while Plaintiffs, because, of their professed religious beliefs, did not. Second, Plaintiffs dispute that dormitories were not permitted in the Village under New York law prior to the passage of the law. . (See Pis.’ 56.1 1132; Defs.’ Counter 56.1 ¶ 132 (citing Savad Decl. Ex. 13 (Ulman Dep, Tr.) 303-304.)
. None of the evidence cited contradicts Plaintiffs’ statement, though, as noted above, this is arguably outside the scope of Plaintiffs’ Wetlands Experts’ field of knowledge.
. Defendants contend that the exception only applies to pre-existing single-family homes. (See Defs.' Mem. 30.) However, the plain language of the Wetlands Law does not contain such a qualifier. See Village Code § 126~3(D) ("The aforesaid one-hundred-foot buffer in which regulated activities are not permitted to take place shall not apply to lots that are improved with single-family residences.” (emphasis added)).
. Plaintiffs indicate that "[a]ccess from the Property to Route 202 is impracticable because of the existence of steep slopes, wetlands, and wetland buffers,” but the only evidence they cite is the M. Tauber Declaration. (Pis.' 56.1 ¶ 621.) M. Tauber, however, as discussed above, is an expert neither on environmental topography nor Village law, and as such this evidence is insufficient.
.An Environmental and Planning Analysis by one of Plaintiffs’ experts indicates that federal regulation of wetlands ends at the wetlands themselves, suggesting there is no buffer requirement under federal law. (Second Gordon Aff. Ex. A, at 8; see abo Defs.' Mem. 30 (citing Savad. Decl. Ex. 313, at 461) (noting that there is no federal buffer requirement).)
. Based on exhibits to the aforementioned report, there are certainly state and federally regulated wetlands in the Village, though it is not clear whether they fall in the Subject Property or not. (Second Gordon Aff. Ex. A, at 61-63.)
. In their Opposition, Defendants claim that because Plaintiffs have not challenged the Village’s R-40 zoning they could not have built the rabbinical college anyway. (Defs.’ Opp’n 29.) The special use permitting process, as described below, provides for educational institutions "subject to special permit approval.” See Village Code § 130-10(F). The problem is that the Challenged Laws impose conditions on qualifying as an acceptable educational institution and on development near wetlands more generally, which are conditions that Plaintiffs allege the proposed rabbinical college cannot meet.
. While the Parties do not explicitly address the issue, the same, analysis applies to the prospect of the Congregation obtaining a permit to build an access road within the buffer area of the wetlands on the' west side of the Subject Property, pursuant to Village Code § 126-3.
. Specifically, Defendants contend that the Dormitory Law was passed “in response to requirements in case law.” (Defs.’ 56.1 ¶ 124.) The Village determined that the district court in Congregation Mischknols Lavier Yakov, Inc. v. Bd. of Tr. of Vill. of Airmont, No. 02-CV-5642 (S.D.N.Y. filed July 19, 2002) "indicated that dormitories could not be prohibited in relation to an educational use,” and that the New York Court of Appeals in Cornell Univ. v. Bagnardi, 68 N.Y.2d 583,
. Of note, Plaintiff repeatedly cites Holt v. Hobbs, - U.S. -,
. The Tenafly court made clear- that "courts consistently analyze the constitutionality of zoning regulations limiting [the] construction of houses of worship under the Free Exercise Clause, not the Free Speech Clause.” Tenafly,
. In Adhi Parasakthi, the court found that the plaintiffs’ desire to use land for worship and an annual religious festival was protected by the First Amendment.
Plaintiffs also suggest that, if the Court accepts Defendants’ argument that the laws can simply be amended, the Challenged Laws are a prior restraint on speech because they afford unbridled discretion to Defendants. (See Pis.’ Opp’n 20-22; Defs.’ Opp’n 35-36.) The Court, need not address this argument because Plaintiffs' have failed to establish a viable free speech claim. See Adhi Parasakthi,
. Plaintiffs allege that M. Babad is "one of the few [rabbinical] judges fully trained in all four books of the Shulchan Aruch.” (Pis.’ 56.1 ¶ 553.) While, on the one hand, this suggests that there may be a lack of adequately fully trained rabbinical judges, it also suggests that the training that most rabbinical judges receive is in less than the full Shulchan Aruch, implying that training in the full Shul-chan Aruch is unnecessary.
. Defendants also contend that RLUIPA was passed illegally, noting that "[i]t was not passed unanimously,” and that it was enacted "negligently or intentionally without reference to the most relevant Supreme Court doctrine in derogation of federalism.” (Defs.' Mem. 58.) However, there is certainly no requirement that Congress must pass legislation unanimously, see Skaggs v. Carle,
. It is also worth noting that Plaintiffs at least make an argument, however tenuous, as to why the proposed rabbinical college would affect interstate commerce, which.Defendants do not rebut, (see Pis.’ Mem. 9 ("Plaintiffs’ use and development of the Subject Property unquestionably meets this criteria.” (citing Chabad Lubavitch, 768 F.3d at 183, 192 (construction of religious facility meets jurisdictional element)))); WDS II,
. Defendants reliance on this law is ironic, given they challengéd the ASHL upon its adoption, (See PL's 56.1 ¶ 138.)
. The Court previously dismissed Plaintiffs’ New York Civil Rights -Law § 40-c. claim (claim 11) as unripe, and, despite discussing that claim in the motion papers, (see Defs.’ Mem. 44 n. 28; Pis.’ Opp’n 26), neither Party has offered any reason for the Court to reexamine that ruling here. See Tartikov,
. While Plaintiffs cite O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d 521,
. Defendants argue that, if the Court strikes any of the affirmative defenses, particularly Defendants’ standing, lack of case or controversy, and failure to assert a facial challenge defenses, "there is a body of case law holding that ... [they] will be treated as waived,” (Defs.' Mem. 44.) Because the Court does not strike any of Defendants’ affirmative defenses, but instead grants summary judgment on them, there is no waiver concern here.