The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendants Michael Lenz,*fn1 Thomas Curley, Matthew McCabe, Thomas McTygue, Stephen Towne (collectively "council defendants"), Lewis Benton, Robert Bristol, Robert Israel, William McTygue, Nancy Ohlin, and Lou Schneider (collectively "board defendants,") move for reconsideration of the court's October 18, 2007 order insofar as it denied plaintiffs' motion to dismiss the Fair Housing Act ("FHA") claims against them individually. For the reasons that follow, the court partially vacates its prior order and dismisses the claims against the council defendants in their individual capacities. It further dismisses the claims against the board defendants in their individual capacities only insofar as such claims arise out of their involvement in the downzoning of the Southern Weibel Avenue District ("SWAD"). The court's October 18, 2007 Order is otherwise affirmed.
A. Anderson Development Proposal and Saratoga Springs Zoning
1. Anderson Property and 1999 Zoning Change
Saratoga Springs is a city of approximately 26,000 people situated 35 miles north of Albany. (See Pl. SMF ¶1, Dkt. No. 83.) The land at issue in this litigation is referred to as the SWAD, and is located within the outlying area of Saratoga Springs, adjacent to and east of I-87. Id. at ¶11.
Since at least 1987, the Anderson family has owned 115.32 acres or 93% of the SWAD. Id. at ¶¶11, 12. In 1990, the Anderson property within the SWAD was zoned Rural-Residential 1 ("RR1"),*fn2 which restricted development to one housing unit per two acre lot. Id. at ¶21. In 1999 the comprehensive plan for the City's land use policies was amended. Id. at ¶¶22, 28. This new comprehensive plan designated the SWAD as an "impact area," which envisioned development that would include "a large campus-style office park ... and high-density residential development with surrounding recreational areas." Id. at ¶¶22, 23, 26. To facilitate such development the zoning ordinance applicable to the SWAD was also amended in 1999, identifying the tract as a "special development area" where "office parks, large offices, and high density residential [buildings]" were the preferred uses. Id. at ¶28.
2. 2001 Rezoning and Subsequent Annulment
On July 17, 2001, the comprehensive plan for Saratoga Springs was modified again. Id. at ¶33. The plan now consisted of an intensively developed urban core, with outlying areas comprised of open lands and low density residential development. Id. In accordance with the revised plan, a committee ("SWAD Land Use Committee") was appointed to study the land use options for the SWAD. Id. at ¶36. This committee began work in 2002. Id.
In order to assist in the implementation of the new 2001 comprehensive plan, the City also appointed a Zoning Ordinance Review Committee ("ZORC") to recommend zoning ordinance amendments. Id. at ¶37. The ZORC ultimately made numerous zoning recommendations to the City Council, one of which was to delay the RR-1 re-zoning of the SWAD until December of 2003, in order to give the SWAD Land Use Committee time to conduct its investigation. Id. at ¶38. This was the only ZORC recommendation which the City Council declined to implement, instead rezoning the SWAD to RR-1 on May 20, 2003. Id. at ¶39. Plaintiffs contend that this action was in response to a potential plan Susan Anderson Touhey presented to the SWAD Land Use Committee on May 16, 2003 for a development on the Anderson property which would include affordable housing. Id. at ¶¶14, 39, 40.
The Andersons subsequently brought an Article 78 proceeding in New York State Supreme Court, challenging the rezoning of the SWAD.
Id. at ¶41. On May 10, 2004, Judge Nolan annulled the RR-1 rezoning and reinstated the previous high density zoning for the SWAD, finding that the City had failed to comply with the State Environmental Quality Review Act ("SEQRA"). Id.
3. Proceedings Subsequent to the Zoning Annulment
After Judge Nolan's decision, the Andersons claim they retained an architect and engineers, consulted affordable housing experts, and, by the summer of 2004, had designed a development called Spring Run Village. Id. at ¶42. The original plan placed the development on a 44-acre parcel in the northern portion of the SWAD and included an office building and 259 residential units, 52 of which were designated as affordable housing. Id. at ¶¶45, 46. In July of 2004, the Andersons presented the development plan to the county workforce housing group.*fn3 Id. at ¶44.
On September 2, 2004, the City was provided with a full SEQRA assessment supporting the rezoning of the SWAD to RR-1. (See Def. SMF ¶95, Dkt. No. 72.) Later that month, on September 23rd, a special use permit application to build Spring Run Village was filed with the City Planning Board on behalf of Gail Anderson and The Anderson Group ("TAG"). (See 9/23/04 Special Use Permit, Dkt. No. 87.) Meanwhile, having received the favorable SEQRA report, the City Council voted to seek an advisory opinion from the City Planning Board regarding the potential RR-1 rezoning of all of the SWAD land except that necessary for the Spring Run Village proposal. (See Def. SMF ¶104, Dkt. No. 72.)The City Planning Board held a public meeting on November 3rd to consider the City Council's request for an advisory opinion. Id. at ¶110. After deliberation and public commentary for and against the partial rezoning of the SWAD, the Planning Board unanimously voted to issue an unfavorable opinion to such rezoning, and requested that the City Council consider the entire SWAD for rezoning. Id. at ¶¶114, 115.
The Council was informed of this unfavorable opinion and, on November 17th, voted to seek an advisory opinion from the Planning Board as to the rezoning of the entire SWAD to RR-1. Id. at ¶130. The City Planning Board also engaged in an initial review of the Spring Run Village special use permit application on this date. (Pl. SMF ¶47, Dkt. No. 83.)*fn4
However, once informed of the Council's vote by the city attorney, the Board tabled consideration of the application until a later date. (Def. SMF ¶¶177, 178, Dkt. No. 72.) On December 8th, the Planning Board again considered the Andersons' Spring Run Village application and the City Council's request for an advisory opinion on the proposal to rezone the entire SWAD to RR-1. Id. at ¶132. The Board unanimously voted to recommend re-zoning the entire SWAD to RR-1. Id. at ¶138. They also rejected the Andersons' application because the Spring Run Village proposal did not contain a connector road certain board members claimed was necessary since the proposal contained an office building. (See Pl. SMF ¶48, Dkt. No. 83.) The Andersons removed the office building from the proposal and resubmitted their application on December 15th. Id. at ¶49. The final plan for Spring Run Village included 300 residential units, of which 60 were affordable units. Id.
On February 1, 2005, the City Council voted to rezone the entire SWAD to RR-1, despite the fact that the Saratoga County Planning Board had unanimously opposed such rezoning.*fn5 Id. at ¶¶59, 60. As a result of the rezoning, the Andersons' proposal was no longer consistent with the zoning ordinances. (Def. SMF ¶211, Dkt. No. 72.) On February 2nd the Planning Board met to discuss the Andersons' resubmitted application. Id. at ¶210. No one appeared before the Board for the Andersons at this meeting. Id. at 212. The parties dispute whether the Planning Board therefore denied the application as inconsistent with the new zoning, or instead considered the application withdrawn. (See Def. SMF ¶212, Dkt. No. 72; Pl. SMF ¶62, Dkt. No. 83.)
On March 1st Gail Anderson filed a second Article 78 proceeding to challenge the City's rezoning of the SWAD to RR-1. (See Pl. RSMF ¶225, Dkt. No. 86.) The petition was dismissed on May 18th. The Plaintiffs' filed the current action on October 28, 2005, asserting disparate treatment and impact claims under the FHA and New York Human Rights Law. (See Def. SMF ¶¶226, 229, Dkt. No. 72.)
B. Evidence of Discrimination
Plaintiffs claim that in delaying and denying their special use permit application and downzoning the SWAD, the council and board defendants knowingly bowed to the discriminatory animus of the community against groups protected under the FHA. (See Pl. Resp. MSJ Pgs. 26-32, Dkt. No. 88.) Without rehashing plaintiffs' entire seventy page brief, evidence has been presented that:
* The African American population of Saratoga Springs has decreased while the overall population of the City has been increasing. (See, e.g., Ex. 5 at 41, Dkt. No. 84:6; Ex. 25 at Table 1a, Dkt. No. 84:26; Ex. 32 at 4,8, Dkt. No. 85:9)
* The small number of African Americans who reside in Saratoga Springs are concentrated in downtown areas, with few residing in the outer tracts. (See, e.g., Ex. 32 at 5, Dkt. No.85:9)
* In 2006, the city documented 2700 households in need of affordable housing. (See, e.g., Ex. 90 at 3, Dkt. No. 90:7)
* A significantly higher percentage of African Americans qualify for and need affordable housing in Saratoga Springs when compared to Whites. ...