OPINION AND ORDER
Plaintiffs Mosdos Chofetz Chaim, Inc. (“Mosdos”), Yeshiva Chofetz Chaim, Inc. (“YCC”), Rabbi James Bernstein (“Bernstein”), Moshe Ambers (“Ambers”), Rabbi Naftoli Sofer (“Sofer”), Naftoli Tesher (“Tesher”), Beatrice Zaks, and Sima Zaks (collectively, “Plaintiffs”) bring this action against Defendants the Village of Wesley Hills (“Wesley Hills”), the Mayor and the Board of Trustees of Wesley Hills, Robert H. Frankel, Edward B. McPherson, David A. Goldsmith, Robert I. Rhodes, Jay B. Rosenstein (together, the ‘Wesley Hills Defendants”), the Village of Pomona (“Pomona”), the Mayor and Board of Trustees of Pomona, Herbert I. Marshall, Nicholas L. Sanderson (together, the “Pomona Defendants”), the Village of Chestnut Ridge (“Chestnut Ridge”), the Mayor and Board of Trustees of Chestnut Ridge, Jerome Kobre, Howard L. Cohen (together, the “Chestnut Ridge Defendants”), the Village of Montebello (“Montebello”), the Mayor and Board of Trustees of Montebello, Kathryn Ellsworth a/k/a Kathryn Gorman, Jeffrey Oppenheim (together, the “Montebello Defendants”), and John Does 1-37 (collectively, “Defendants”). Plaintiffs allege claims under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 for violations of and conspiracy to violate their rights under the
On March 31, 2010, the Court granted Defendants’ motions to dismiss the initial Complaint, which had been filed on January 8, 2008, without prejudice. See Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 701 F.Supp.2d. 568 (S.D.N.Y.2010) (“Mosdos I” ).
I. Background
A. The Parties
Plaintiffs are religious corporations and individuals affiliated with the Chofetz Chaim sect of the Orthodox Jewish community, all of whom allege an interest in the operation of Kiryas Radin, “a religious educational institution and center for religious activity and prayer,” at a location in the Town of Ramapo (“Ramapo”) known as the Nike Site. Defendants are four Villages (the “Villages” or “Village Defendants”) located within Ramapo, as well as current and former officials of each of those Villages (the “Individual Defendants”). Plaintiffs have filed this action to challenge alleged discriminatory- conduct by Defendants, which Plaintiffs argue violates their civil rights.
B. Mosdos I
As previously noted, on March 31, 2010, the Court granted Defendants’ motions to dismiss, without prejudice. In its Opinion, the Court addressed a number of issues that are relevant to the pending motions.
1. Standing
The - Court previously determined that Plaintiffs Mosdos and YCC had adequately pled injury-in-fact because they alleged that they suffered injury from being unable to operate Kiryas Radin, despite spending money and making efforts to complete construction on the Nike Site, and have also expended resources to litigate the state court Chestnut Ridge Action.
The Court concluded that Plaintiffs sufficiently alleged the causation and redress-ability elements of standing with respect to the pursuit of the Chestnut Ridge Action by the Village Defendants. Plaintiffs expended resources litigating the Chestnut Ridge Action, and the filing of that action (and the resulting TRO issued by the state court) prevented Plaintiffs from operating Kiryas Radin on the Nike Site. See id. at 584-85. However, Plaintiffs did not allege an adequate link between the Village Defendants’ allegedly discriminatory zoning laws and Plaintiffs’ claimed injuries. See id. at 585. The Nike Site is not in any of the Villages, and Plaintiffs did not allege that they either had a property interest within any of the Villages, had tried to build or live in the Villages, had been denied a variance of permit from any of the Villages, or planned to take action within the Villages that would subject them to the zoning laws in the near future. The laws also did not delay operation of Kiryas Radin, because the Nike Site is not subject to the zoning laws. Accordingly, despite Plaintiffs’ allegations that the zoning laws discriminate against the Hasidic community in general, they did not allege that they personally were injured by the laws. See id. at 585-86.
2. Compulsory Counterclaims
In Mosdos I, the Court also concluded that Plaintiffs Mosdos and YCC are barred from pursuing their claims against the Village Defendants because, under Federal Rule of Civil Procedure 13, those claims should have been filed as compulsory counterclaims in the Chestnut Ridge Action. See id. at 588. Plaintiffs Mosdos and YCC are named as defendants in the Chestnut Ridge Action and the counterclaims that Mosdos and YCC alleged in that action share the same factual background as the instant action. See id. at 589. The Court explained that Plaintiffs’ allegation in the Complaint that the Chestnut Ridge Action was a pretext for illegal actions by the Village Defendants is logically intertwined with the validity of the Village Defendants’ legal claims, which will be determined in the Chestnut Ridge Action. See id. at 590. Thus, Mosdos and YCC were required to raise their claims against the Village Defendants as compulsory counterclaims in the Chestnut Ridge Action, and those claims were dismissed. See id. Likewise, because the claims against the Individual Defendants sued in their official capacity are duplicative of the claims against the Village Defendants, the claims of Mosdos and YCC against the Individual Defendants in their official capacities also are barred as unpled compulsory counter
3. First Amendment Right to Petition . and the Noerr-Pennington Doctrine
In addition, the Court examined whether Defendants’ pursuit of the Chestnut Ridge Action was activity protected by the First Amendment and the Noerr-Pennington doctrine.
However, the Court reiterated that the actions of municipalities in pursuing litigation must be consistent with the Constitution. See id. at 603. Government actors may not pursue even meritorious claims if they do so in a discriminatory fashion. See id. The Court noted that discrimination could be established if Plaintiffs demonstrate that the Village Defendants were improperly selective in litigating to protect their interests. See id. By way of analogy, the Court noted that a claim of selective petitioning in violation of the Equal Protection Clause is akin to a selective enforcement claim, where a plaintiff alleges that an otherwise valid law has been selectively enforced against him, but not against other similarly situated people, based on impermissible factors. See id. at 601. Thus, to plead a selective petitioning claim in the instant action, Plaintiffs must allege both: (1) that they were selectively treated compared to others similarly situated; and (2) that the selective treatment was motivated by an intention to discriminate based on impermissible considerations, such as religion. See id. at 603.
The Court concluded that although the second prong was properly pled in the Complaint, Plaintiffs had not alleged that they were treated differently than others similarly situated. Id. In the Complaint, Plaintiffs alleged that the Village Defendants had approved the development of other multi-family, high-density units in their own villages, “without any alarm over infrastructure or sewer capacity” (Compl. ¶ 56) — the claimed concerns with the Kiryas Radin project — and that other “units were approved by the Villages throughout Ramapo without any opposition,” (id.). The Court found this bare allegation of differential treatment to be insufficient because Plaintiffs did not explicitly allege that these other developments were similarly situated to Plaintiffs’ proposed development, nor allege facts suggesting that they were similarly situated. See Mosdos I,
Accordingly, the Court concluded that Plaintiffs had not made out a claim that defeated Defendants’ qualified immunity, under the Noerr-Pennington doctrine and the First Amendment, to prosecute the Chestnut Ridge Action and, therefore, Plaintiffs were barred from pursuing claims based on the filing of that action. See id. at 604. However, the Court granted Defendants’ motions to dismiss without prejudice and allowed Plaintiffs leave to amend their Complaint to address this issue. See id.
C. The Amended Complaint
Plaintiffs filed an Amended Complaint on June 3, 2010, containing a number of changes from the original Complaint.
1. Parties
Sofer, Tesher, Beatrice Zaks, and Sima Zaks were added as Plaintiffs in the
In addition, David Goldsmith, Mayor of Wesley Hills, was added as a Defendant.
In the caption of the Amended Complaint, Plaintiffs indicate that each Individual Defendant is sued in his/her official and individual capacity, as was the case in the Complaint. In the Amended Complaint’s discussion of each Individual Defendant, Plaintiffs further allege with respect to each individual that he or she “acted and participated in the underlying discrimination set forth in this complaint in both his [or her] individual and official capacity,” but also specify that Plaintiffs are suing each Individual Defendant “in his [or her] individual capacity as a current and former [or just former] village official.” (Am. Compl. ¶¶ 17-22, 24-25, 27-28, 30-31.)
2. Challenge to Zoning Regulations
Plaintiffs now state that the action is “both a facial and as-applied change [sic] to the imposition and implementation of land use regulations.” (Am. Compl. ¶ 1.) The initial Complaint challenged only the application of the law. Plaintiffs also allege that the regulations burden the religious practice of Orthodox communities in the Villages’ jurisdiction (id. ¶ 2), and claim that Plaintiffs are members of Chofetz Chaim, a sect of Orthodox Jewry, and “have been affected by -the Villages’ discriminatory practices and actions,” (id. ¶ 36). Plaintiffs allege that the Villages were discriminatorily established to control Hasidic immigration, land use, and religious exercise. (Id. ¶¶ 42-43.)
Plaintiffs’ challenge to the laws as applied fails for the same reasons . discussed in Mosdos I — namely, that Plaintiffs lack standing to challenge the laws because they have not alleged adequately the causation and redressability elements of standing. See Mosdos I,
The Court also notes that Defendants did not address Plaintiffs’ newly-added fa
S. Claims Related to Chestnut Ridge Action
In Mosdos I, the Court concluded that Plaintiffs had standing with respect to Defendants’ pursuit of the Chestnut Ridge Action in state court. However, the Court concluded that to be actionable, Defendants must have selectively chosen to bring suit regarding the Nike Site while treating other similarly situated properties differently. In the Amended Complaint, Plaintiffs allege that the Village Defendants “joined forces to extend their bias and discrimination beyond their own borders and have selectively chosen to attack this religious land use project for religious Jewish education while ignoring many other land use projects of greater impact and size not built for the ultra-Orthodox Jewish community.” (Am. Compl. ¶ 3.) Plaintiffs further allege that when Ramapo sought to revise its “Master Plan” to accommodate Hasidic growth in Ramapo, the Villages decided that no zoning expanding allowable new construction could take place “due to possible water shortages and increases in traffic.” (Id. ¶ 46.) However, Plaintiffs allege that although the Village Defendants “opposed the Master Plan ostensibly due to density and lack of resources,” they “approved or did not oppose the development of hundreds of multi-family, high-density units, including at least one operated by a religious non-Jewish entity, in their own ... or in neighboring villages without raising any alarm over infrastructure or sewer capacity.” (Id. ¶ 51.) In addition, according to Plaintiffs, none of the Village Defendants instituted a lawsuit against any other municipality and, although “the neighboring villages were notified as interested municipalities in these projects,” there were “no letters of opposition or concern to these large projects” in the relevant planning files. (Id.)
The Amended Complaint specifically mentions eight projects that Plaintiffs claim the Defendants did not oppose. Plaintiffs allege that: (1) Airmont Gardens is in the Village of Airmont, borders Montebello, was built in 2003, and is a large project of multiple residential buildings with 140 units (Am. Compl. ¶ 52(a)); (2) Pulte Homes is in the Village of Airmont, borders Montebello, was built in 2002, and is a large project with seven large residential apartment buildings with 20 units per building (id. ¶ 52(b)); (3) the Salvation Army is a non-Jewish religious entity that built a student center with 16 attached units for families in close proximity to Montebello in 1997 and built additional residential dwellings and housing for cadets in 2007, without opposition to the project by any Village Defendant (id. ¶ 52(c)); (4) Sycamore Crest is in the Village of Spring Valley, is in close proximity to Chestnut Ridge, and is a large project with a residential apartment building with multifamily units (id. ¶ 52(d)); (5) Harbors of Haverstraw is in the Village of Haverstraw, is close to Pomona, and is a large project with multiple residential apartment buildings approved for 400 units (id. ¶ 52(e)); (6) Avalon at Crystal Hill is in the Town of Haverstraw, is near Pomona, and is a large project of multiple residential apartment buildings with 174 units (id. ¶ 52(f)); (7) Minisceongo Park is in the Town of Haverstraw, is close to Pomona, and is a large project of multiple residential apartment buildings with 200 units (id. ¶ 52(g)); and (8) Montebello Commons is a large project with a “massive residential apartment building” with about 100 units
In addition, Plaintiffs allege that as claimed in ¶ 52 of the Amended Complaint (the paragraph setting forth the eight comparators), Pomona discriminated against Hasidic Jews when it selectively chose to review and challenge land use developments which allow for the expansion of Hasidic communities — specifically Mos-dos’s Kiryas Radin project — and that the discrimination was in furtherance of Pomona’s bias against a specific group of people based on their religious practice and faith. (Id. ¶88.) Plaintiffs further allege that Pomona “has not targeted other similarly situated land uses and developments which are being prosecuted [sic] by non-Hasidic/ultra-Orthodox, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion.” (Id. ¶ 89.)
Plaintiffs also allege that as stated in ¶ 52 of the Amended Complaint, “Wesley Hills has not targeted other non-religious and religious non-Jewish similarly situated land uses and developments, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion.” (Id. ¶ 102.) Plaintiffs further allege that the Mayor of Wesley Hills “was clear that he had no real concerns with the Mosdos project regarding water, sewer or traffic,” and that the “underlying cause of the continuing action was the direct need to stop the yeshiva project due to antiHasidic/Orthodox bias by all the plaintiff villages in the state matter.” (Id. ¶ 106.) Additionally, Plaintiffs allege that despite acknowledging that, based on the state court’s determination, Wesley Hills is the only Village with standing to make a SEQRA challenge to Kiryas Radin, “May- or David Goldsmith indicated that he must act in concert and coordination with Pomona, Chestnut Ridge and Montebello to further their collective agenda and therefore he was unable to discuss settlement with Mosdos/Y[CC].” (Id. 1Í107.) Plaintiffs further allege that: (1) as stated in ¶ 52 of the Amended Complaint, “Chestnut Ridge has not targeted other non-Orthodox, similarly situated land uses and developments, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion”; (2) “Chestnut Ridge is over 4 miles away from the Kiryas Radin project and miles away from any proposed Adult Student Housing location”; and (3) Chestnut Ridge’s “participation with the other Defendants is to collectively stop the growth of the Hasidic/ultra-Orthodox community.” (Id. ¶¶ 110-11.) Lastly, Plaintiffs allege that as stated in ¶ 52, “Montebello has not targeted other non-Orthodox and non-Hasidic, similarly situated land uses and developments, even where such developments would affect the same purported govern
Ip. Individual Defendants
Plaintiffs specify that the Defendants include “individuals whose biased edicts or acts were done selectively under the color of official policy.” (Id. ¶ 1.) Plaintiffs also allege that the named Individual Defendants “were involved individually in the Villages’ campaign against land use regulation that accommodates Plaintiffs and other members of the Hasidic Community.” (Id. ¶ 63.) Plaintiffs further state that “the retention of counsel and the prosecution of litigation in the name of the Villages was a discretionary act of the individual defendants and done to further their and the Villages’ participation in the effort to target the Hasidic and ultra religious community under the guise of proper municipal action.” (Id. ¶ 74.) Plaintiffs do make additional allegations with respect to some specifically identified Individual Defendants, but not all of them. The Court notes that there are no specific allegations particular to the individually named Pomona Defendants, as will be discussed further below.
5. Other Allegations
Plaintiffs allege that after the Villages were dismissed as plaintiffs in the Chestnut Ridge Action for lack of standing, an organization called Preserve Ramapo, which sought to prevent Plaintiffs from enjoying the right to utilize their own property for the religious purposes intended, asked people to send contributions to Wesley Hills Village Hall to help stop the Yeshiva project; in addition, Wesley Hills allegedly allowed meetings at its Village Hall to advance the anti-Hasidic agenda. (Am. Compl. ¶¶ 96-98.) According to Plaintiffs, Wesley Hills also allowed a mulching operation — a purportedly dangerous health hazard and nuisance — to continue operating after Wesley Hills had obtained a permanent injunction to shut it down, allegedly to prevent a Yeshiva from buying the land for religious land use. (Id. ¶ 103.) Plaintiffs also allege a variety of other comments purportedly made by Wesley Hills officials that indicated bias against Orthodox Jews and an attempt to keep yeshivas from buying property and building in the Village. (Id. ¶¶ 92, 99-100, 105.)
6. Newly Added Causes of Action
Plaintiffs added a number of additional causes of action in the Amended Complaint, including claims under the Free Exercise Clause, the Establishment Clause, 42 U.S.C. §§ 1981 and 1985(3), and the Fair Housing Act. These claims will be discussed infra Section II.F.
II. Discussion
A. Standard of Review
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y.,
The Second Circuit has emphasized that “before materials outside the record may become the basis for a dismissal, several conditions must be met.” Faulkner v. Beer,
Here, the non-Pomona Defendants have submitted a number of documents with their motion to dismiss. The Court may take judicial notice of many of these documents. For example, the Court may consider decisions or pleadings from other court actions. (Aff. Of Michael Zarin (“Zarin. Aff.”) Exs. 2-3.) The Court may also take judicial notice of village and
B. Noerr-Pennington Immunity for Municipalities
The non-Pomona Defendants argue that the Village Defendants are entitled to immunity under the Noerr-Pennington doctrine, even if they selectively commenced the Chestnut Ridge Action with discriminatory intent. (Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) 2-3, Sept. 20, 2010.) The Pomona Defendants adopted this argument in their motion. (Defs.’ Mem. of Law in Supp. of Cross-Motion to Dismiss (“Pomona Mem.”) 4, Oct. 3, 2010.) The Court already fully addressed this argument in Mosdos I and, although it did not delineate a precise boundary of protection, it concluded that the Village Defendants would not be entitled to complete Noerr-Pennington immunity if they had selectively chosen to sue Plaintiffs, and not other similarly situated projects, for discriminatory reasons. Defendants have not provided the Court with any reason to revisit this conclusion, and the Court declines to do so here.
C. Selective Treatment
Defendants next argue that Plaintiffs have failed to allege facts necessary to defeat any qualified immunity that the Noerr-Pennington doctrine would provide the Village Defendants. In Mosdos I, the Court explained that Plaintiffs could establish that the Chestnut Ridge Action was pursued for discriminatory reasons by showing that Plaintiffs were selectively treated. The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. See City of Cleburne v. Cleburne Living Ctr.,
1. Similarly Situated Standard
There are two types of equal protection claims that require similarly situated comparators. The first, selective enforcement or selective treatment claims pursuant to LeClair v. Saunders,
The Second Circuit set forth the test for similarly situated in the “class of one” context in Neilson v. D’Angelis,
Defendants argue that this test should also be applied to selective treatment claims of the type alleged here by Plaintiffs, relying primarily on the Second Circuit decision in Skehan v. Village of Mamaroneck,
The Court disagrees. In Neilson, the Court compared “class of one” claims to those in which plaintiffs claim selective treatment based on membership in a protected class. There is no indication that the comparison was to a traditional claim requiring no comparators at all. Moreover, although the Second Circuit did cite the Neilson language in Skehan, the Court does not agree that the test was “expressly extended,” when the issue of whether the comparators were similarly situated was not even before the Skehan court. Thus, the citation of that test is more akin to dicta. In addition, the Second Circuit’s opinion in Appel, the case that overruled both Neilson and Skehan, indicates that the Appel court believed that Skehan actually was a “class of one” case. See Appel,
It is true that some district courts within the Second Circuit have stated that the similarly situated test is the same in selective enforcement and “class of one” cases and, thus, have required plaintiffs asserting a selective enforcement claim to show an extremely high degree of similarity between themselves and the claimed comparators. See, e.g., Kamholtz v. Yates Cnty., No. 08-CV-6210,
However, several district courts have continued to apply different standards to selective treatment and “class of one” claims after Skehan. For example, in Abel,
To satisfy this less-demanding test in the selective enforcement context, plaintiffs “must identify comparators whom a prudent person would think were roughly equivalente, but] [p]laintiff[s] need not show an exact correlation between [themselves] and the comparators.” Abel,
The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as the lawyer’s art of distinguishing cases, the ‘relevant aspects’ are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely or necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.
T.S. Haulers, Inc. v. Town of Riverhead,
The Court agrees with these courts that have employed a different, more demanding standard of similarity for “class of one”
2. Plaintiffs’ Allegations of Similarly Situated Comparators
Therefore, the Court must determine whether Plaintiffs have adequately alleged that any of their eight proffered comparators is similarly situated in all material respects and that a prudent person would think it roughly equivalent. Defendants maintain that Plaintiffs have failed to do so. ' Generally, whether two projects “are similarly situated is a factual issue that should be submitted to the jury.” Harlen Assocs.,
Defendants argue that Plaintiffs have not alleged the necessary facts to show that the comparators are similarly situated. Defendants have decided that the relevant factors that must be similar are types of land use, project density, zoning of the site, the surrounding zoning, and the environmental review undertaken pursuant to SEQRA. (Defs. Mem. 13.) Defendants have not explained how they determined that this was the appropriate list of factors, or why all of these factors must be similar for the Court to determine at this stage that the comparators are sufficiently similar to the Nike Site to satisfy the Twombly plausibility standard. In contrast, Plaintiffs maintain that a proper “comparable in this case is any land use project involving multiple family dwellings of a size similar to or larger than Mosdos’s project within Rockland County and within a reasonable distance of any of the defendant municipalities ... [because] any project of this description would have an impact on environmental issues like County water and sewer, traffic flow and community character.” (Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (“Pis.’ Opp’n”) 4, Oct. 22, 2010.)
In Mosdos I, the Court concluded that Plaintiffs had not alleged that other projects were similarly situated to the proposed development. The Court specifically mentioned that the Complaint lacked allegations “that the other developments were similar in size or scope to the proposed development, or that they were approved during the same time frame.” Mosdos I,
In contrast, the Amended Complaint does contain such allegations. Plaintiffs allege that: (1) Airmont Gardens borders Montebello, was built in 2003, and is a large project of multiple residential buildings with 140 units (Am. Compl. ¶ 52(a)); (2) Pulte Homes borders Montebello, was built in 2002, and is a large project with seven large residential apartment buildings with 20 units per building (id. ¶ 52(b)); (3) the Salvation Army is a non-Jewish religious entity in close proximity to Montebello, has a student center with 16 attached units for families that was built in 1997 and additional residential dwellings and housing for cadets that were built in 2007 with no opposition by any of the Defendant Villages (id. ¶ 52(c)); (4) Sycamore Crest is in close proximity to Chestnut Ridge and is a large project with a residential apartment building with multifamily units (id. ¶ 52(d)); (5) Harbors of Haverstraw is close to Pomona and is a large project with multiple residential apartment buildings approved for 400 units (id. ¶ 52(e)); (6) Avalon at Crystal Hill is near Pomona and is a large project of
The Court does note that in paragraph 52 of the Amended Complaint, which lists these projects, Plaintiffs do not specifically state: (1) that these projects are similarly situated to the Nike Site/Kiryas Radin; (2) that the projects would have comparable impacts on the traffic, water, and sewer issues raised by Defendants; or (3) with the exception of the Salvation Army site, that these projects are owned and operated by non-Orthodox Jews. However, later in the Amended Complaint, Plaintiffs do refer back to paragraph 52 and state that these other similarly situated, non-Orthodox land use developments were not challenged by the Village Defendants even where they would affect the same purported government interests of water, sewer, and traffic in a greater fashion. (Id. ¶¶ 89, 102, 110, 113.) Assessing the Amended Complaint as a whole, Plaintiffs’ failure to specifically allege these facts individually for each development is not fatal to their claim.
3. Defendants’ Evidence
In addition to arguing that Plaintiffs’ allegations were insufficient to conclude
a. Airmont Gardens
Defendants argue that the land use for Airmont Gardens “is entirely different” than the Nike Site because the Airmont Gardens development was approved as 140 one-and-two-bedroom senior citizen rental apartments, rather than adult student housing accessory to an educational institution. (Defs.’ Mem. 15.)
The Court disagrees with Defendants’ conclusion. None of the purported differences necessitate a finding, for purposes of this motion, that Airmont Gardens is not similarly situated to the Nike Site. First, the non-Pomona Defendants emphasize that some courts have determined that type of land use is relevant to a similarly situated determination. For example, in Ruston, where the plaintiffs claimed the proposed subdivision of their property into fourteen residential units (for which the defendant had refused to allow them to
In addition, although the court in Club-side did point to differing density levels in determining that two properties were not similarly situated, that case involved the difference between 28 units and 288 units under the prima facie identical standard.
Defendants next focus on the zoning of areas near the proposed comparators. The Court may consider the maps provided by Defendants concerning the zoning of the properties and their surrounding areas as public documents, of which judicial notice may be taken. However, at the motion to dismiss stage, the Court does not infer from these maps that the properties are entirely dissimilar. For example, Defendants argue that Airmont Gardens does not abut a single-family residential zone in any of the Defendant Villages. However, the Nike Site only borders such a zone in Wesley Hills; the Nike Site does not abut Montebello, Pomona, or Chestnut Ridge at all. Yet those three Villages still sued YCC and Mosdos and, through that suit, have prevented the Individual Plaintiffs
b.Pulte Homes
Defendants argue that like Airmont Gardens, Pulte Homes is a senior residential development with a lower density level than the Nike Site. (Defs.’ Mem. 17.) Defendants also argue that the Pulte Homes property features different zoning; is separated from Montebello by other properties in Airmont and by a highway; that Montebello did submit a comment letter; and that the project did not have the potential to adversely impact community character. (Id. at 17-18.) Defendants’ arguments with respect to Pulte Homes similarly are unpersuasive. As the Court concluded with respect to Airmont Gardens, a large senior residential development is not a different enough land use to render the project dissimilar. Again, the density figures are unsupported and inappropriate to consider on a motion to dismiss. Although the existence of a highway separating the property from Montebello may make the relationship between Pulte Homes and Montebello different than the Nike Site’s relationship to Wesley Hills, that difference is inapplicable to the other three Villages that do not border the Nike Site. Additionally, there is no basis for the Court to consider the comment letter. And, Defendants’ allegation that Pulte Homes would not impact community character is an unsupported conclusion. Accordingly, it is plausible that Pulte Homes and the Nike Site could be found to be fair comparators.
c.The Salvation Army
Defendants concede that as an educational institution with accessory housing, the Salvation Army site has a similar land use to the Nike Site. However, Defendants maintain that the sites are otherwise different because the Salvation Army site was approved for 2 units per acre as opposed to the 12.8 units per acre on the Nike Site; the nearby zoning districts were different; and the site did not abut a single-family low density neighborhood in Montebello, the nearest Defendant Village. (Id. at 18-19.) For the same reasons discussed with respect to the other comparators, these differences are insufficient to conclude that the Salvation Army site is not plausibly similarly situated to the Nike Site.
d.Sycamore Crest
Defendants argue that Sycamore Crest, a 96 unit senior citizen apartment building
e.Harbors of Haverstraw
Defendants argue that Harbors of Haverstraw is dissimilar to the Nike Site because it was undertaken by a private developer, in conjunction with the Village of Haverstraw, as a comprehensive public/private waterfront redevelopment urban renewal project. (Id.) In addition, Defendants contend that it underwent years of public review and a comprehensive EIS; therefore, Defendants argue that they could not have brought suit to annul a Negative Declaration where one did not exist. (Id. at 21.) The Court agrees with Defendants that this site is not similarly situated to the Nike Site. In the Chestnut Ridge Action, Defendants sought to annul the Negative Declaration afforded by Ramapo to the Nike Site because they argued a full EIS should have been conducted. The fact that an EIS was done for the Harbors of Haverstraw project makes the property, and Defendants’ reaction (or lack thereof) to the project, sufficiently dissimilar from the Nike Site.
f.Avalon at Crystal Hills
Defendants argue that this property is not similarly situated to the Nike Site because it is not a residential development accessory to an educational institution and is over a mile away from the nearest Village Defendant. (Id.) Neither of these differences is sufficient to defeat Plaintiffs’ allegation that the properties are similarly situated. The Avalon at Crystal Hills project is still a large project of multiple residential buildings, despite the lack of connection to an educational institution. And, as already explained, the lack of proximity is not a compelling difference, given the lack of proximity between the Nike Site and Pomona, Montebello, and Chestnut Ridge, all of which brought action to enjoin the planned use of the Nike Site.
g.Minisceongo Park
Defendants argue that the Minisceongo Park project is different from the Nike Site because, inter alia, it was required to prepare a full EIS. (Id. at 22.) As with Harbors of Haverstraw, the full EIS conducted by Minisceongo Park does lead the Court to conclude that a prudent person could not view it as similar to the Nike Site. The' Village Defendants could not have brought an Article 78 proceeding to compel an EIS when one was already conducted.
Defendants contend that Montebello Commons is dissimilar because it is a senior citizen rental housing development, rezoning was not necessary to approve the project, and the site abuts parcels zoned for office buildings. (Id. at 23.) Again, the Court concludes that the difference between senior housing and the housing planned at the Nike Site is not a different enough land use to render the properties dissimilar. Likewise, the difference in surrounding zoning does not, for purposes of a motion to dismiss, indicate that the project could not have similar effects on traffic, water, sewer, and the overall community character.
A Defendants’ Other Arguments Against Similarity
The Court notes that with one exception, all of the cases cited by Defendants in support of their view that Plaintiffs have not met the standard of similarity required in the land use context were “class of one” cases and, thus, were analyzed under a different, more stringent standard for similarly situated. As previously noted, plaintiffs asserting a “class of one” claim are required to show that the comparators are so similar that no rational person could view them as different. See, e.g., Ruston,
In addition, the Court already has distinguished Ruston, Clubside, and Campbell factually from the instant case. The other cases cited by Defendants also differ from the allegations in the Amended Complaint. See Mattison v. Black Point Beach Club Assocs.,
In addition, to the extent that courts have required defendants to know that there were similarly situated individuals, yet consciously apply a different standard to the plaintiff, see, e.g., Abel,
D. Claims Against the Individual Defendants in their Individual Capacity
Notwithstanding the Court’s decision in Mosdos I, Plaintiffs have sued several Defendants in their individual capacity. These Defendants are entitled to Noerr-Pennington immunity. See Mosdos I,
E. Claims of Mosdos and YCC
In addition, the Court previously concluded that all claims by Mosdos and YCC against the Village Defendants and against the Individual Defendants in their official capacities, arising from Defendants’ pursuit of the Chestnut Ridge Action, are barred as unpled compulsory counterclaims. See Mosdos I,
Thus, the remaining claims are those of the Individual Plaintiffs against the Village Defendants and against the Individual Defendants to the extent that they are sued in their official capacity, arising from those Defendants’ pursuit of the Chestnut Ridge Action.
F.Additional Causes of Action
As mentioned supra, the Amended Complaint contains other causes of actions besides the federal Equal Protection claim. Plaintiffs also allege that: (1) Defendants’ laws and actions violate the First Amendment’s Free Exercise Clause “[a] by discriminating against and targeting Hasidic/ultra-Orthodox Jews in general and Plaintiffs in particular for disfavor; [b] by treating religious assemblies and institutions on less than equal terms as nonreligious assemblies and institutions; and [c] by substantially burdening the Plaintiffs’ religious exercise without a compelling governmental interest” (Am. Compl. ¶ 115); (2) Defendants’ laws and actions violate the First Amendment’s Establishment Clause “by favoring non-Hasidic/ultra-Orthodox land use and property owners over Hasidic/ultra-Orthodox land use and property owners” (id. ¶ 119); (3) Defendants violated 42 U.S.C. § 1981 by
To the extent Plaintiffs are challenging the Village Defendants’ zoning laws in these causes of action, Plaintiffs lack standing for the same reasons discussed in Mosdos I. As to Defendants’ actions in pursuing the Chestnut Ridge Action, the claims by Mosdos and YCC against the Village Defendants are barred as unpled compulsory counterclaims. However, because the Court has concluded that the Individual Plaintiffs have alleged a selective enforcement claim against the Village Defendants and the Individual Defendants in their official capacity sufficient to defeat Noerr-Pennington immunity at this stage of the litigation, the rest of these causes of actions may proceed on behalf of the Individual Plaintiffs as well. Defendants have not argued that Plaintiffs failed to state a claim as to any of these causes of action based on their elements; instead, Defendants argue that there should be total immunity under Noerr-Pennington, an argument already rejected by the Court.
In addition, the Amended Complaint also contains two causes of action pursuant to the Fair Housing Act (“FHA”). Unlike the rest of the claims, these claims are alleged specifically by the Individual Plaintiffs against the Individual Defendants acting in their individual capacity. Plaintiffs allege that “Defendants, by their conduct, acts, and legislative enactments, [ (1) ] have discriminated against the Plaintiffs by making unavailable and denying a dwelling to the Plaintiff because of its members’ race, or religion in violation of 42 U.S.C. § 3604(a),” and (2) “have interfered with the Plaintiffs’ exercise or enjoyment of rights protected by 42 U.S.C. § 3604, in violation of 42 U.S.C. § 3617.” (Am. Compl. ¶¶ 127, 131.) Plaintiffs have not specified which conduct, acts, and legislative enactments by the Individual Defendants form the basis for their FHA claims. The conduct of the Individual Defendants in their individual capacity in pursuing the Chestnut Ridge Action is completely protected under Noerr-Pennington. If Plaintiffs are referring to other conduct or acts that are not subject to such immunity—and that Plaintiffs would have standing to pursue—they have not indicated which acts. Accordingly, these claims are dismissed.
G. Statute of Limitations
Pomona Defendants also argue that the action should be dismissed as time-barred by the applicable statute of limitations. (Pomona Mem. 14-15.)
It is true that the Chestnut Ridge Action was commenced more than three years prior to the initiation of the present lawsuit. However, as Pomona Defendants acknowledge, a § 1983 action accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Pearl v. City of Long Beach,
H. Notice of Claim
Pomona Defendants argue that Plaintiffs’ claims pursuant to the New York Constitution and New York Civil Rights Law are barred because Plaintiffs failed to file a notice of claim pursuant to N.Y. Gen. Mun. L. §§ 50-e and 50 — i. (Pomona Mem. 15-16.)
“[I]n a federal court, state notice-of-claim statutes apply to siaie-law claims.” Hardy v. N.Y.C. Health & Hosps. Corp.,
Therefore, the relevant inquiry is whether Plaintiffs’ claims brought pursuant to the New York State Constitution and New York Civil Rights Law are subject to New York’s notice of claim requirement. In their memorandum of law, Plaintiffs argue that they were not required to file a notice of claim because they maintain that §§ 50-e and 50 — i only apply to state tort law claims and not state constitutional or civil rights claims. (Pls.’ Opp’n 28.)
However, in Pratt, the court concluded that under New York law, unlike civil rights claims, state constitutional claims are subject to the notice of claim requirement. See Pratt,
Based on the lack of clarity in New York law (and the rather brief analysis of this issue in the memoranda of law submitted to the Court), at oral argument the Court pointed the Parties to the 423 S. Salina St. case and requested that Plaintiffs and the Pomona Defendants submit letters to the Court further addressing the applicability of the notice of claim requirement. On July 20, 2011, Plaintiffs submitted a letter to the Court apparently conceding that, based on 1/.23 S. Salina St., New York considers state constitutional claims to be torts subject to the notice of claim requirement. (Dkt. No. 68.) Accordingly, Plaintiffs request an order “extending the time to file a Notice of Claim with each of the municipalities which are defendants herein.” (Id.)
However, this Court does not have jurisdiction to grant leave to serve a late notice of claim. New York law provides that
However, district courts within this Circuit “have routinely found that they lack jurisdiction to even consider such an application.” Humphrey v. Cnty. of Nassau, No. 06-CV3682,
Pomona Defendants argue that the individually named Pomona Defendants — the Mayor Nicholas Sanderson (“Sanderson”), the former Mayor Herbert Marshall (“Marshall”), and the Board of Trustees— are entitled to qualified immunity. (Pomona Mem. 17.) As already discussed, the claims against the Individual Defendants in their individual capacity are dismissed pursuant to the immunity afforded by the Noerr-Pennington doctrine. At this time, the Court need not address whether qualified immunity would be available to Sanderson and Marshall in their official capacity because Pomona Defendants are correct that the Amended Complaint contains no specific allegations regarding these individuals. Besides the caption, the only mention of Sanderson and Marshall is in the description of the Parties, where Plaintiffs state that Sanderson and Marshall each have “acted and participated in the underlying discrimination set forth in this complaint.” (Am. Compl. ¶¶ 24-25.) Such conclusory statements, without any factual allegations as to the discriminatory conduct of these individuals, are insufficient to state a plausible claim under Twombly. Accordingly, the claims against Sanderson and Marshall in their official capacity are dismissed.
III. Conclusion
For the reasons stated herein, the claims of Plaintiffs Mosdos and YCC are dismissed in their entirety. The claims by the Individual Plaintiffs against the Individual Defendants in their individual capacity also are dismissed, as are the claims against Sanderson and Marshall in their official capacity, though without prejudice. To the extent Plaintiffs are challenging the Village Defendants’ zoning regulations and laws, those claims are dismissed. Plaintiffs’ claims against the Pomona Defendants under the New York State Constitution are dismissed without prejudice. The motions to dismiss are denied in all other respects. The Clerk of Court is respectfully directed to terminate the pending motions. (Dkt. Nos. 52 and 55.)
SO ORDERED.
Notes
. The Parties in the initial Complaint were slightly different than those now named in the Amended Complaint currently before the Court. Two plaintiffs were removed, as were defendants from the Village of New Hemp-stead. In addition, as further discussed below, four plaintiffs have been added in the Amended Complaint.
. As explained in Mosdos I, on October 13, 2004, the Village Defendants and two individuals commenced a proceeding in New York Supreme Court, Westchester County (the “Chestnut Ridge Action”) challenging the enactment of Ramapo's Adult Student Housing Law ("ASHL”), pursuant to Article 78 of the New York Civil Practice Law and Rules. See Mosdos I,
'On June 13, 2005, the New York Supreme Court granted an injunction to the two indi
. The Noerr-Pennington doctrine derives from two Supreme Court antitrust cases, and is rooted in First Amendment principles. See United Mine Workers of Am. v. Pennington,
As the Court previously explained, "the Second Circuit has acknowledged that the doctrine is an application of the First Amendment and courts within the Second Circuit have held that it is therefore relevant outside the context of antitrust actions.” Mosdos I,
. Pomona Defendants attempt to argue that the entire action should be dismissed for lack of standing. (Defs.’ Mem. of Law in Supp. of Cross-Mot. to Dismiss ("Pomona Mem.”) 10-14.) Pomona Defendants are directed to the Court's discussion on standing in Mosdos I, in which, as explained above, the Court determined that Plaintiffs did have standing to bring claims stemming from Defendants’ pursuit of the Chestnut Ridge Action. The Court will not revisit this conclusion.
. The Court notes that David A. Goldsmith was listed as a Defendant in the initial Complaint and remains in the Amended Complaint (in addition to David Goldsmith). The Amended Complaint describes David Goldsmith as the Mayor of Wesley Hills (Am. Compl. ¶ 17), and David. A. Goldsmith as "currently the Mayor” and "formerly ... a Trustee” of Wesley Hills, (id. ¶ 20). The Court assumes these references are to the same person even though they are listed separately in the caption and the description of the Parties.
. In the Amended Complaint, Plaintiffs also added an allegation that the Village Defendants did not file opposition to an additional 1,000 units north of Ramapo that were planned to be connected to Ramapo’s infrastructure; that upon information and belief, other projects were approved throughout Ramapo without opposition from Defendants; and that Defendants did not oppose these other projects because they were not meant to accommodate Orthodox Jewish religious use. (Am. Compl. ¶ 53.)
. The Court notes that these allegations, although condemnable if true, have a limited impact on the pending motion. In these allegations, Plaintiffs are alleging incidents and statements against Orthodox Jews in general; not against Plaintiffs in particular. Thus, these allegations suffer from a standing problem and do not appear to state an actionable claim for which Plaintiffs may seek relief. However, these allegations are relevant to the second prong of Plaintiff's selective enforcement Equal Protection claim, in which, as previously explained, Plaintiffs must allege that the selective treatment that they allegedly received was motivated by an intent to discriminate based on impermissible considerations, such as religion.
. The precise nature of the Kamholtz plaintiff's claim is unclear. The facts indicate that the plaintiff believed he was selectively treated in retaliation for exercising his right to free speech. However, in discussing the plaintiff's selective enforcement equal protection claim, the court noted that "[t]he Second Circuit has warned ... that ‘cases predicating constitutional violations on selective treatment motivated by ill-will, rather than by protected-class status or an intent to inhibit the exercise of constitutional rights, are lodged in a murky comer of equal protection law in which there are surprisingly few cases and no clearly delineated mies to apply.’ ” Kamholtz,
. Other courts have acknowledged the disagreement without deciding which standard should apply. See, e.g., Gentile v. Nulty, 769
. In advocating for the more stringent similarly situated test, the non-Pomona Defendants argue that "the similarly situated requirement must be enforced with particular rigor in the land use context because zoning decisions will often, perhaps almost always, treat one landowner differently from another." (Defs.’ Mem. 8) (citing Mattison v. Black Point Beach Club Ass'n,
Defendants also cite the recent decision in Ruston v. Town Bd. of Skaneateles,
. Pomona Defendants also argue that the Amended Complaint fails to allege how the proposed comparators were treated differently. (Pomona Mem. 6.) This assertion is without merit because Plaintiffs allege that the Village Defendants did not inquire into the environmental review of these other projects, voice environmental concerns regarding the review process, or oppose these developments, let alone bring a state court action to halt the developments.
. These facts are obtained from the Resolution of the Planning Board of the Village of Airmont addressing Airmont Gardens' application for zoning approval (Zarin Aff. Ex. 13), of which the Court is able to take judicial notice.
. Defendants also claim that Montebello did submit a comment letter regarding Airmont Gardens. (Defs.’ Mem. 16.) However, as explained earlier, this comment letter (Zarin Aff. Ex. 17) is not a public document of which the Court may take judicial notice. In addition, even if the Court could consider this document, it could be viewed as demonstrating that Airmont Gardens did implicate many of the same environmental concerns as those at issue with the Nike Site and, that at least one of the Village Defendants was clearly aware of those concerns, but chose not to challenge the project through litigation.
. In Clubside, the court concluded that the plaintiffs proposed 288 unit development of duplex and triplex townhouses was materially different than a 28 lot single family home comparator because the differences of type and scale would impose significantly different burdens on the town's sewer and water systems; however, the proposed development was deemed to be sufficiently similar to a 285 unit multi-family development that was approved for an extension of the sewer district. See Clubside,
. The non-Pomona Defendants again assert in their reply memorandum of law that Plaintiffs are required to “cite a project that similarly affects community character in the Villages as the Nike Site Project.” (Reply Mem. of Law in Further Supp. of Defs.’ Mot. to Dismiss ("Defs.’ Reply”) 3, Nov. 5, 2010 (emphasis omitted).) However, the Court reiterates that whether a project "affects community character” is a factual issue, not appropriately resolved on a motion to dismiss.
. Defendants also have asked the Court to consider Third Church of Christ Scientist v. City of New York,
. This conclusion is not meant to imply that the properties are similarly situated. Whether the properties are in fact similarly situated is not for the Court to decide at the motion to dismiss stage. See T.S. Haulers,
. Pomona Defendants argue that the Amended Complaint is deficient because it fails to differentiate among the actions or conduct of the various Defendants. (Pomona Mem. 8.) However, it is undisputed that the four Village Defendants all sued Mosdos and YCC to enjoin the planned use of the Nike Site. Accordingly, Plaintiffs have adequately alleged conduct by each of the Villages.
In addition, in their reply memorandum of law, the non-Pomona Defendants argue that they have treated similarly situated projects the same, because Pomona also sued over a proposed high-density adult student multi
. Pomona Defendants assert that Plaintiffs’ failure to timely bring their claims deprives
. Plaintiffs also asserted that the notice of claim provisions do not apply to actions seeking to vindicate a public interest, without explaining why this lawsuit should be considered such an action. (Pis.’ Opp’n 28.)