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Fortress Bible Church v. Feiner

August 12, 2010

FORTRESS BIBLE CHURCH AND REVEREND DENNIS G. KARAMAN, PLAINTIFFS,
v.
PAUL J. FEINER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE SUPERVISOR OF THE TOWN OF GREENBURGH, EDDIE MAE BARNES, IN HER OFFICIAL CAPACITY AS COUNCILWOMAN FOR THE TOWN OF GREENBURGH, STEVEN BASS, IN HIS OFFICIAL CAPACITY AS COUNCILMAN FOR THE TOWN OF GREENBURGH, DIANA JUETTNER, IN HER OFFICIAL CAPACITY AS COUNCILWOMAN FOR THE TOWN OF GREENBURGH, TIMMY WEINBERG, IN HER OFFICIAL CAPACITY AS COUNCILWOMAN FOR THE TOWN OF GREENBURGH, THE TOWN BOARD OF THE TOWN OF GREENBURGH, AND THE TOWN OF GREENBURGH, DEFENDANTS.



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

ORDER AND OPINION

Fortress Bible Church ("Fortress Bible Church" or "the Church") and Reverend Dennis Karaman ("Reverend Karaman") (collectively, "Plaintiffs" or "the Church"), brought this action against Paul Feiner, Eddie Mae Barnes, Steven Bass, Timmy Weinberg, the Town Board of the Town of Greenburgh ("the Town Board"), and the Town of Greenburgh ("the Town of Greenburgh" or "the Town") (collectively, "Defendants" or "the Town"). Plaintiffs seek relief under: (1) the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA"); (2) 42 U.S.C. § 1983, alleging violations of Plaintiffs' First Amendment Free Exercise, First Amendment Free Speech, First Amendment Free Assembly, Fourteenth Amendment Equal Protection, and Fourteenth Amendment Procedural Due Process rights; (3) the New York State Constitution, alleging violations of Plaintiffs' rights of free exercise, free speech, and equal protection; (4) New York State Environmental Quality Review Act, N.Y. ENVIR. CONS. LAW §§ 8-0101 et seq. ("SEQRA"), alleging that Defendants' acted arbitrarily, capriciously, and unlawfully in processing Fortress Bible Church's land use application; (5) various New York State statutes and the Greenburgh Town Code.

I. BACKGROUND

a. Procedural History

Plaintiffs commenced this action on June 11, 2003. By Notice of Motion dated July 3, 2003, Plaintiffs sought an Order compelling the Town Board to, among other things, adopt and issue a Final Environmental Impact Statement ("FEIS") and SEQRA Findings Statement, thereby completing the SEQRA review process. By Notice of Motion dated July 28, 2003, Defendants moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim.

By Decision dated March 29, 2004, this Court denied Plaintiffs' motion to compel the Town Board to complete the SEQRA process. In a separate Decision, also dated March 29, 2004, this Court denied Defendants' motion to dismiss. On or about April 22, 2004, Plaintiffs filed a Second Amended Complaint.

Thereafter, the parties engaged in a lengthy period of discovery that included approximately eighteen depositions and significant document productions.

By Decision dated May 4, 2006, this Court denied Defendants' motion for summary judgment, except with respect to a cause of action alleging denial of substantive due process. The Court reserved decision on Plaintiffs' motion in limine for sanctions and for an adverse inference based on spoliation of evidence. See Trial Tr. at 21:1-6.*fn1 Trial commenced on October 11, 2006.

b. Trial

The twenty-six day bench trial conducted in this action commenced on October 11, 2006, and proceeded thereafter on non-consecutive days until its conclusion on March 6, 2007. On its case-in-chief, the Church presented testimony from seven fact witnesses and one expert witness, designated pursuant to Federal Rule of Civil Procedure 26. The Church called the following witnesses:

(i) David Schiff, AICP, of Saccardi & Schiff, the Church's planning consultant ("Church Planning Consultant Schiff"), see Trial Tr. at 61-319;

(ii) William Lachenauer, of Dolph Rotfeld Engineering, P.C., the Church's site engineering and hydrology consultant, see Trial Tr. at 325-504;

(iii) Phillip Grealy, Ph.D., P.E., of John Collins Engineering, P.C., the Church's traffic consultant ("Traffic Consultant Grealy"), see Trial Tr. at 526-877;

(iv) Anthony Russo, AKRF, Inc., former Planning Commissioner to the Town in connection with the Church's application ("Town Planning Commissioner Russo"), see Trial Tr. at 882-980;

(v) John Saccardi, AICP, of Saccardi & Schiff, a certified planner ("Church Planning Consultant Saccardi"), see Trial Tr. at 980-1041;

(vi) Stuart Turner, of Turner/Geneslaw, retained by the Town after close of the DEIS stage of SEQRA review to serve as a planning consultant in connection with the Church's application ("Town Planning Consultant Turner"), see Trial Tr. at 1048-1552; (vii) Plaintiff Reverend Dennis Karaman, Pastor of Fortress Bible Church, see Trial Tr. at 1577-1678; and

(viii) Vincent Vetrano, of Wolf & Company, Plaintiffs' designated expert on the increased costs of construction due to the Town's conduct, see Trial Tr. at 1715-65.

Plaintiffs did not present any rebuttal witnesses.

In addition, Plaintiffs designated, and this Court received into evidence, deposition testimony from the following witnesses*fn2

(i) Defendant Eddie Mae Barnes, a Member of the Town Board of the Town of Greenburgh ("Councilwoman Barnes")*fn3;

(ii) Defendant Steven Bass, a Member of the Town Board of the Town of Greenburgh ("Councilman Bass");

(iii) Frederick Doneit, of Turner/Geneslaw, a planning consultant who assisted Town Planning Consultant Turner in connection with the Church's application ("Town Planning Consultant Doneit");

(iv) Defendant Paul Feiner, a Member of the Town Board and Supervisor of the Town of Greenburgh ("Supervisor Feiner");

(v) Allan Hochberg, a non-party witness who served as the President of the Poet's Corner Civic Association;

(vi) Gerry Iagallo, the Town Assessor for the Town of Greenburgh ("Town Assessor Iagallo");

(vii) Janet Insardi, the Deputy Town Attorney for the Town of Greenburgh ("Deputy Town Attorney Insardi");

(viii) Defendant Diana Juettner, a Member of the Town Board of the Town of Greenburgh ("Councilwoman Juettner");

(ix) John Kapica, the Chief of Police of the Town of Greenburgh ("Police Chief Kapica");

(x) Kevin Loyst, FPM Group, the Town's hydrology consultant ("Town Consultant Loyst");

(xi) John Lucido, the Building Inspector for the Town of Greenburgh ("Town Building Inspector Lucido");

(xii) Robert Mauro, the Chief of the Fairview Fire Department ("Fire Chief Mauro");

(xiii) Kevin Phillips, Ph.D., P.E., of FPM Group, the Town's hydrology consultant ("Town Consultant Phillips");

(xiv) Mark Stellato, the Commissioner of Planning for the Town of Greenburgh ("Town Planning Commissioner Stellato"); and

(xv) Defendant Timmy Weinberg, a former Town Board Member ("Councilwoman Weinberg").

Defendants presented testimony at trial from the following sixteen fact witnesses:

(i) Alan Hochberg, see Trial Tr. at 1788-1835;

(ii) Blase Spinozzi, appointed Deputy Town Supervisor in connection with the Church's application, see Trial Tr. at1837-81;

(iii) Councilwoman Weinberg, see Trial Tr. at 1882-1953;

(iv) Police Chief Kapica, see Trial Tr. at 1958-2004;

(v) Town Building Inspector Lucido, see Trial Tr. at 2006-17;

(vi) Fire Chief Mauro, see Trial Tr. at 2021-79;

(vii) Councilwoman Juettner, see Trial Tr. at 2084 - 2129;

(viii) Councilman Bass, see Trial Tr. at 2129-71;

(ix) Town Planning Consultant Doneit, see Trial Tr. at 2174-2300;

(x) Supervisor Feiner, see Trial Tr. at 2303-2423, 2426-2521, 2538-71;

(xi) Councilwoman Barnes, see Trial Tr. at 2575-2629;

(xii) Town Consultant Phillips, see Trial Tr. at 2638-2697, 2789-2829;

(xiii) Town Consultant Loyst, see Trial Tr. at 2700-88;

(xiv) Town Planning Commissioner Stellato, see Trial Tr. at 2837-2990, 3149-3236;

(xv) Deputy Town Attorney Insardi, see Trial Tr. at 2994-3146; and

(xvi) Michael Maris, the Town's traffic consultant ("Town Traffic Consultant Maris"), see Trial Tr. at 3249-3419.

Defendants did not designate or otherwise attempt to introduce testimony from any expert witness.

Over the course of the trial, the Court admitted more than three hundred exhibits into evidence, including joint exhibits and exhibits introduced by the respective parties. The Court also received a Statement of Stipulated Facts.

Following the trial, Plaintiffs submitted to the Court "Plaintiffs' Post-Trial Statement of Proposed Findings of Fact and Conclusions of Law" ("Plaintiffs' Post-Trial Statement") and Defendants submitted "Defendants' Proposed Post Trial Findings of Fact and Conclusions of Law" ("Defendants' Post-Trial Statement"). The Court also held oral arguments on the parties' post-trial submissions on July 30, 2007.

As set forth above, Plaintiffs and Defendants had a full and fair opportunity to present their cases to the Court. The Findings of Fact and Conclusions of Law set forth below, pursuant to Federal Rule of Civil Procedure 52(a), are based on the extensive record developed over the course of the bench trial.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 52(a) provides, in relevant part, that in bench trials, the court "shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58." FED. R. CIV. P. 52(a). Rule 52(a) further provides that such findings of fact, "whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Id.

III. FINDINGS OF FACT

a. The Parties

i. Plaintiffs

1. Plaintiff Fortress Bible Church is a Pentecostal church. See Trial Tr. at 1578:23-1579:5 (Karaman).Fortress Bible Church was established in the early 1940's and has been at its present location in Mount Vernon, New York, for more than forty years. See Stipulated Fact No. 3. Fortress Bible Church is one of approximately one hundred churches throughout the United States affiliated with the Christian Church of North America ("CCNA"). See Trial Tr. at 1579:12-1580:4 (Karaman). The CCNA denomination has more than eighty churches in the United States and almost two thousand and five hundred churches internationally. See Trial Tr. at 1579:20-1580:1 (Karaman). Fortress Bible Church has approximately one hundred seventy-five members. See Stipulated Fact No. 2. The Church also maintains the Fortress Christian academy, which as an educational program that spans Kindergarten through Grade Twelve. See Stipulated Fact No. 6. Religious activities conducted by the Church include weekly religious worship, Bible instruction, fellowships, Bible studies, ministries (and support of ministries within the United States and overseas), and Christian education. See Stipulated Fact No. 4.Starting in September 1982. See Stipulated Fact No. 5. As membership grew, it added a Sunday night service and a music ministry and significantly expanded its Sunday school. See id. Fortress Bible Church is a tax-exempt religious organization. See Stipulated Fact No. 1.

2. Plaintiff Reverend Dennis Karaman is an ordained minister and pastor of Fortress Bible Church. See Trial Tr. at 1578:2-3 (Karaman).Reverend Karaman has served as pastor of Fortress Bible Church since June 1, 1977. See id. at 1578:10-15 (Karaman). Reverend Karaman also serves as principal of the Fortress Christian Academy. See Trial Tr. at 1590:19-21 (Karaman). Additionally, Reverend Karaman serves as General Overseer of the Christian Church of North America ("CCNA"), the parent denomination to which Plaintiff Fortress Bible Church belongs. See Trial Tr. at 1579:6-16 (Karaman).As General Overseer of the CCNA denomination, Reverend Dennis Karaman supervises the United States and international activities of the denomination. See Trial Tr. at 1579:20-1580:1 (Karaman).

ii. Defendants

3. Defendant Town of Greenburgh ("the Town" or "the Town of Greenburgh") is a municipal corporation organized and existing under the laws of the State of New York and is located in the County of Westchester, New York.See Second Amended Complaint ¶ 13; Verified Answer to Second Amended Complaint.*fn4

4. Defendant Town Board of the Town of Greenburgh ("the Town Board") is the duly elected governing body of the Town of Greenburgh. Pursuant to state and local laws, the Town Board is authorized to grant site plan approval in connection with land use applications. See Second Amended Complaint ¶ 12; Verified Answer to Second Amended Complaint.The Town Board is comprised of five elected officials: four elected Town Board Members and the Town Supervisor. See Trial Tr. at 2325:4-6 (Feiner). The position of Town Board Member is a part-time, salaried position. See Dep. Tr. at 8:15-16 (Bass). The position of Town Supervisor is a full-time, salaried position. See Trial Tr. at 2303:23-2304:3 (Feiner).

5. Defendant Paul Feiner has served as Supervisor of the Town of Greenburgh for sixteen years.*fn5 See Trial Tr. at 2303:19-22 (Feiner); Dep. Tr. at 7 (Feiner).Supervisor Feiner is a licensed attorney. See Trial Tr. at 2304:21-2305:5 (Feiner); Dep. Tr. at 8:10-14 (Feiner).Prior to being elected as Supervisor of the Town of Greenburgh, he served as a Westchester County legislator for eight years. See Trial Tr. at 2304:13-17 (Feiner).

6. Defendant Timmy Weinberg was elected to the Town Board in or around 1992 and served on that Board through December 31, 2005. See Trial Tr. at 1884:5-12 (Weinberg). Prior to being elected to the Town Board, she served for approximately five and one-half years on the Zoning Board of Appeals for the Town of Greenburgh. See id. at 1883:21-1884:2 (Weinberg). Councilwoman Weinberg serves as the Town Board's liaison to the Planning Board for the Town of Greenburgh. See Dep. Tr. at 33:9-10 (Weinberg).

7. Defendant Diana Juettner has been a member of the Town Board of the Town of Greenburgh for more than fifteen years. See Trial Tr. at 2086:3-7 (Juettner). Councilwoman Juettner is an attorney licensed to practice in the State of New York. She is a tenured professor of legal studies at Mercy College, where she directs the legal studies program and is also Co-Chair of the Social and Behavioral Sciences Division. See Trial Tr. at 2085:3-7 (Juettner).Councilwoman Juettner serves as liaison for the Town Board to the Town Attorney's office. See Trial Tr. at 2087:1-4 (Juettner).

8. Defendant Eddie Mae Barnes has been a member of the Town Board for fifteen years. See Trial Tr. at 2575:20-25 (Barnes).Councilwoman Barnes holds a Bachelor of Science Degree in Nursing and a Master's Degree in Nursing Administration and Psychiatric Nursing. See Trial Tr. at 2575:14-17 (Barnes). She has worked at Rye Hospital Center for twenty-six years, where she currently serves as Director of Nursing. See Trial Tr. at 2575:10-19 (Barnes).

9. Defendant Steven Bass has served as a member of the Town Board since February 2001. See Trial Tr. at 2130:14-18 (Bass).Councilman Bass has been employed as a legislative aide to the Westchester County Board of Legislators for eight years. See Trial Tr. at 2130:2-9 (Bass).

b. Background

i. The Mount Vernon Facility

10. The Church's current facilities are inadequate to accommodate its current activities and expanding membership. See Stipulated Fact No. 7. The Church's current facilities are located in Mount Vernon, New York. See Stipulated Fact No. 6. They consist of a sanctuary of approximately. 1,800 square feet with a basement of approximately 1,200 square feet. See id.

11. The Fortress Christian Academy is currently located in the Church basement, as well as in a separate, adjacent building (a converted house). See Stipulated Fact No. 6; Stipulated Fact No. 8.There are currently four classrooms (one with no windows) located in the basement of the Church. See Stipulated Fact No. 8. Seven other classrooms are located in the basement, former bedrooms, and living and dining rooms of the adjacent converted house. See id. Some of the classrooms are not separated by walls and multiple grades are taught in the same room. See id.The school is a ministry of the Church. See Trial Tr. at 1582:7-14 (Karaman).

ii. The Proposed Greenburgh Facility

12. On or about March 16, 1998, the Church purchased a 6.53 acre parcel of real property situated in the Town of Greenburgh, Westchester County, New York ("the Pomander Drive property"). The Church purchased the Pomander Drive property for the purpose of constructing a new church facility at that site. See Stipulated Fact No. 9. The Pomander Drive property is vacant, except for a single-family dwelling located on the northern edge of the parcel. See Stipulated Fact No. 11. The parcel has frontage along Pomander Drive to the north, on Dobbs Ferry Road (Route 100B) to the south, and is bordered by residential uses to the north and east. See id. Immediately to the west is the Sprain Brook Parkway. See id. Dobbs Ferry Road (Route 100B) in Hartsdale, New York is a state road. See Stipulated Fact No. 62.

13. Prior to the purchase of the Pomander Drive property, Reverend Karaman met with Town of Greenburgh Commissioner of Planning Steven Lopez ("Town Planning Commissioner Lopez") and Town Building Inspector Lucido. See Trial Tr. at 1612:3-7 (Karaman); Dep. Tr. at 14:4-16:6 (Lucido). Reverend Karaman advised the Town of his intent to construct a church and school on the property, but told them that if the property was not suitable for its intended purpose then he would not pursue the purchase. See Trial Tr. at 1612:3-1615:1 (Karaman).

14. With its purchase of the Pomander Drive property, the Church formulated plans for its development. See Stipulated Fact No. 13. These plans included the construction of a single structure to house the church and school, including a sanctuary, offices, library, kitchen, gymnasium and classrooms designed by Maranatha Church Builders in North Dakota. See Stipulated Fact No. 13.

15. The proposed church is designed to accommodate a maximum of five hundred people, while the school would have a maximum potential enrollment of one hundred and fifty students in classes ranging from Kindergarten through Grade 12. See Stipulated Fact No. 14. The facility would also include offices, a kitchen, classrooms, a gymnasium, and a library. See Stipulated Fact No. 13. A pre-existing single-family house on the Pomander Drive property would remain as the parsonage for the Church. See Stipulated Fact No. 14.

16. All of the foregoing structures and uses proposed in connection with development of the Pomander Drive property are permitted, as of right, within the R-10 zoning district in the Town of Greenburgh. See Stipulated Fact No. 15.

iii. The Pomander Drive Property Neighborhood

17. The Pomander Drive property is located in a mixed use neighborhood which includes the following types of uses within an approximate one-half mile radius: churches, schools, commercial entities, private residences, major roads, office space, and a town park. See Jt. Exh. 69(a) at p. II-C-1 (Response C1); Pl. Exh. 13; Pl. Exh. 14. The commercial entities include the Knollwood Shopping Center (which contains a supermarket, drugstore, movie theatre and other retail use), a gas station, a restaurant, and parking for a New York State Department of Transportation storage facility. See Pl. Exh. 14; Trial Tr. at 2003:13-19, 1986:19-21 (Kapica); Trial Tr. at 87:11-88:3 (Schiff). The major roads include the Sprain Brook Parkway, a six lane regional highway, and Dobbs Ferry Road. See Pl. Exh. 13; Pl. Exh. 14. Rum Brook Park is located across the Sprain Brook Parkway from the Pomander Drive property. See Pl. Exh. 14.

18. The Pomander Drive property lies within the R-10 (residential) zoning district for the Town of Greenburgh. See Stipulated Fact No. 12; see also Jt. Exh. 7 at § 285-14 (Town of Greenburgh Zoning Ordinance).

c. SEQRA Review

i. SEQRA and Land Use Approvals and the Fortress Bible Church Application

19. To construct its proposed building, the Church needed to obtain the following land use approvals from the Town: (i) site plan approval from the Town Board (with a referral to the Planning Board for review and comment); (ii) a waiver from the Town Board of the requirement to construct landscaped parking islands; and (iii) a variance from the Zoning Board of Appeals from the side yard set back requirement to permit the building to be located further away from the adjacent single family homes and closer to the Sprain Brook Parkway. See Stipulated Fact No. 16.

20. The Town has a process by which the Church, as a land use applicant, can receive waivers and variances. See Trial Tr. at 1084:12-15 (Turner); Jt. Exh. 59 at p. I-3.The Church's need to obtain these discretionary approvals from the Town triggered the environmental review processes under the New York State Environmental Quality Review Act ("SEQRA"), 6 N.Y.C.R.R. § 617.

21. Before any of these three approvals could be issued by the Town, the following SEQRA process was required:

ii. A "lead agency" needed to be designated to perform the SEQRA review.

iii. The lead agency needed to review the Environmental Assessment Form ("EAF") and related application materials.

iv. The lead agency needed to make a determination of environmental significance, rendered through the issuance of a negative, positive or conditioned negative declaration.

1. If the lead agency issues a Negative Declaration-i.e., a finding that the project as proposed will not result in any significant adverse environmental impacts-the SEQRA process is concluded and the Town could then consider and take action on the three required land use approvals.

2. If the lead agency issues a Conditioned Negative Declaration-i.e., a finding that the action as initially proposed may result in one or more significant adverse environmental impacts, but can be mitigated through measures required by the lead agency, such that no significant adverse environmental impacts will result-the SEQRA process is concluded and the Town could then consider and take action on the three required land use approvals.

3. If the lead agency issues a Positive Declaration-i.e., a finding that the project may have a significant impact on the environment- then an Environmental Impact Statement ("EIS") must be completed. Completion of the EIS requires:

a. preparation of a draft Scoping document identifying the areas of environmental significance to be reviewed in the EIS;

b. public input on the draft Scope;

c. adoption of the Scope (by the lead agency);

d. preparation of the Draft EIS ("DEIS") (by the applicant);

e. determination that the DEIS is complete (by the lead agency);

f. public input on the DEIS;

g. preparation of the Final EIS ("FEIS") (usually by the applicant);

h. determination that the FEIS is complete (by the lead agency);

i. issuance of a written Findings Statement (by the lead agency). v. Issuance of any of the required approvals could come only at the time the Findings Statement is promulgated.

See generally 6 N.Y.C.R.R. §617.

22. The proposed Fortress Bible Church project did not require or involve a subdivision. See Trial Tr. at 1276:13-17 (Turner).

23. As part of the SEQRA process, the Town typically holds public hearings on site plan applications. No SEQRA public hearings were ever held with respect to the Fortress Bible application. See Trial Tr. at 144:1-18 (Schiff); see also Jt. Exh. 13; Jt. Exh. 14; Jt. Exh. 47; Jt. Exh. 68; Jt. Exh. 112; Jt. Exh. 129; Jt. Exh. 130 (Plaintiffs' requests that the Town hold a public hearing on the application).

vi. Fortress Bible Church's Application

24. On or about November 24, 1998, the Church submitted an application to the Town Board for site plan approval, together with an EAF, as required by SEQRA ("November 1998 application"). See Stipulated Fact No. 17; Jt. Exh. 1(b). The November 1998 application proposed the construction of a church and school within a single building with one hundred and twenty-five parking spaces on 1.45 acres of the 6.53 acre site. See Stipulated Fact No. 18.

25. On December 9, 1998, Chief Mauro of the Fairview Fire Department advised the Town by letter that "[t]he Fairview Fire Department has reviewed the application and plans for [the Fortress Bible Church project] and the Department takes no exceptions to the plans as presented." See Jt. Exh. 2.

26. Plaintiffs met with the Town Board at its work session on December 15, 1998 to discuss the application. See Jt. Exh. 3.

27. On January 7, 1999, the Church requested that its application be placed on the January 13, 1999, Town Board Agenda for lead agency determination and referral to the Planning Board. See Jt. Exh. 3.The Town Board did not discuss the application on January 13, 1999. On or about January 27, 1999, the Church and its professional consultants appeared before members of the Town Board and the Town's planning staff at a Town Board work session to discuss the site plan application. The Town's planning staff requested that the Church study the issues of traffic and access to the Pomander Drive property prior to the Town proceeding with the application and making a determination of environmental significance under SEQRA. See Stipulated Fact No. 19.

28. On or about February 2, 1999, representatives of the Fortress Bible Church, including Reverend Karaman, the Church's attorney, and the Church's site engineer, met with residents who live near the Pomander Drive property. See Stipulated Fact No. 20; Second Amended Complaint at ¶ 41; Answer to Second Amended Complaint.In attendance at this meeting was Blase Spinozzi who lives at 21 Primrose Avenue, near the Pomander Drive property. See Trial Tr. at 1840:4-11 (Spinozzi).The purpose of this meeting-the first of two held by the Church-was to discuss the Church's proposed development and seek input from its neighbors. See Stipulated Fact No. 20; Second Amended Complaint at ¶ 41; Answer to Second Amended Complaint' Trial Tr. at 1615:6-24 (Karaman).The primary concern expressed at the meeting by local residents involved increased vehicular traffic, particularly on Pomander Drive. See Second Amended Complaint at ¶ 41; Answer to Second Amended Complaint.

29. Under New York State and local law, the Fortress Bible Church has the right to use Pomander Drive for the purpose of gaining vehicular access to its property. See Second Amended Complaint at ¶ 41; Answer to Second Amended Complaint.

30. On or about February 10, 1999, the Town Board circulated a notice of its intent to designate itself as lead agency pursuant to SEQRA for review of the Church's project. See Stipulated Fact No. 21; Jt. Exh. 5.

31. In March 1999, Saccardi & Schiff was retained to represent the Church as its planning consultant. See Stipulated Fact No. 22. The Church also retained John Collins Engineers, P.C. ("JCE") as traffic consultants, Dolph Rotfeld Engineers, P.C. ("DRE") as its new site engineer and the Slaker Design Group as its landscape architect. See id. In compliance with the Town's request, Saccardi & Schiff coordinated with JCE the performance of a traffic study of the various roadways and intersections in the vicinity of the Pomander Drive property. See Stipulated Fact No. 22.

32. Plaintiffs performed a traffic study pursuant to the requests of both the community and the Town's planning staff. See Jt. Ex. 160(a) at p. I-4.

33. On May 6, 1999, based on the Town's request that JCE seek preliminary input from the New York State Department of Transportation ("NYSDOT"), JCE provided NYSDOT with a sketch that modified the Church's November 1998 application. The modifications included:

i. relocating the access driveway opposite Spencer Court;

ii. restriping Dobbs Ferry Road to provide a dedicated left turn lane into the Church;

iii. rebuilding the shoulder along a widened portion of the road; iv. providing a dedicated left turn lane onto the Sprain Brook Parkway; northbound entrance ramp from Dobbs Ferry Road eastbound.

See Pl. Exh. 19;Trial Tr. at 553:22-554:1 (Grealy).

34. Some of the modifications the Church proposed were made in order to accommodate requests that Pomander Drive not be used for vehicular access to the property. See Trial Tr. at 72:25-74:2 (Schiff).

35. On June 11, 1999, the Church obtained approval "in concept" from NYSDOT for Plaintiffs' proposed restriping of Dobbs Ferry Road (Route 100B) to provide a left turn lane. See Jt. Exh. 8.

36. On July 21, 1999, JCE advised Town Planning Commissioner Lopez that Fortress Bible Church had obtained conceptual approval from NYSDOT for the improvements described above. See Pl. Exh. 20; Trial Tr. at 543:13-545:17 (Grealy). NYSDOT will not issue formal approval on any request for traffic modifications until the SEQRA process has been completed. See Trial Tr. at 552:19-553:7, (Grealy); Trial Tr. at 3360:24-3361:1 (Maris).

37. Despite the Church's January 7, 1999, request to forward the site plan application to the Planning Board, the Town Board never did so. See Jt. Exh. 3; Trial Tr. at 144:6-18, 315:1-3 (Schiff); Trial Tr. at 373:17-21 (Lachenauer). When acting as lead agency on a land use application, it is the usual practice of the Town Board to refer the application to the Planning Board for comment. See Trial Tr. at 144:11-15 (Schiff).

38. Lucido has been the Building Inspector for the Town of Greenburgh for more than fifteen years. See Trial Tr. at 2006:10-14 (Lucido).In the Town, the Building Inspector makes the determination as to whether a plan complies with the state and local codes and zoning ordinances. See Trial Tr. at 2006:15-2007:24 (Lucido).

39. On April 22, 1999, then-Town Planning Commissioner Lopez advised the Church that, in his opinion, the Church required a use variance because Town Code § 285-39.C.5 restricts development to one principal use per lot in a single family residential zone, but there were two principal uses proposed for the Pomander Drive property-a church and a school. See Jt. Exh. 6. Then-Town Planning Commissioner Lopez also stated that a special permit would be required if the property was to be operated as a private school because the school would then be considered a second primary use. See id.Town Building Inspector Lucido testified that, typically, Town Planning Commissioner Lopez would ask for his interpretation regarding the need for use variances, but that on the Fortress Bible Church application, Town Planning Commissioner Lopez made the determination without conferring with Lucido. See Dep. Tr. at 30:2-16 (Lucido). In fact, neither a use variance nor a special permit was required. See Stipulated Fact No. 16 (no special use permit requirement).

40. On August 13, 1999, the Church's attorney advised then-Town Planning Commissioner Lopez by letter that Lopez's assertion that Fortress Bible Church's application proposed two principal uses on a single lot, allegedly in violation of the Town of Greenburgh Zoning Code Section 285-39.C.5, was incorrect. See Jt. Exh. 9. The Church advised Lopez that: "[T]he restriction of a single principal use on a single lot does not apply to non-residential buildings, such as the church and school proposed by Fortress Bible. Therefore, the application does meet the Town's code standards as pertains to this use and a use variance is not required." See Jt. Exh. 9. The Town never responded to this letter. Town Building Inspector Lucido agreed with Fortress Bible Church's August 13, 1999 letter that a use variance was not required with respect to the Church's application. See Dep. Tr. at 31:22-32:18 (Lucido).

vii.The Expanded EAF Plan

41. On or about January 17, 2000, the Church submitted to the Town a revised site plan, together with a full EAF, Parts 1 and 2, and Visual EAF Addendum, which included a comprehensive traffic study, drainage study, architectural renderings, floor plans, watershed map, site sections and photographs of the site ("January 2000 application"). See Stipulated Fact No. 23; Stipulated Fact No. 63; Jt. Exh. 11(b). An EAF is to be used by the lead agency in determining the environmental significance or non-significance of a project. See 6 N.Y.C.R.R. §617.2(m).

1. Planning Elements

42. The Church's Environmental Assessment form provided the following narrative description of the project:

D. Informational Details

Project Description and Location The proposed action involves construction of a 14,600- square foot (footprint) Fortress Bible Church and school building and 126 parking spaces on a 6.53 acre site located in the Town of Greenburgh in Westchester County, and designated as Volume 7, Sheet 43H, Section 24, P2, P2A and P2B on the Town's Tax Map. The property is located between Pomander Drive and Dobbs Ferry Road (Route 100B) towards the western end of the Town. (See Regional and Site Location Figures). The property is predominantly vacant, with a single residential dwelling located in the northern portion of the property. The zoning is R-10, Single Family Residential, with a 10,000 square foot minimum lot size. Fortress Bible Church was established in the early 1940's. For the last four decades, it has been worshiping in its present location in Mt. Vernon, New York. Its congregates come from a variety of backgrounds and reside in various communities in and around Westchester, including Brewster, the Bronx, Bronxville, Cortlandt Manor, Dobbs Ferry, Eastchester, Hartsdale, Mahopac, Mt. Vernon, New Rochelle, Rockland County, Scarsdale and Yonkers. Fortress Bible Church has, as an important objective, the provision of service to the community.

The subject site for the church is bounded by residential uses to the north and east. To the west lies the Sprain Brook Parkway, providing easy regional access to the site, and to the south lies Dobbs Ferry Road, from which vehicular access to the site will be provided. Across Dobbs Ferry Road, to the south, is a residential neighborhood with single family homes.

Possible Impacts

1. Visual and Aesthetic

The site is rectilinear in shape, approximately 245 feet wide in the east-west direction, and approximately 1,150 feet long along the north-south axis. It is predominantly vacant and wooded with mostly deciduous vegetation. The site slopes down from the east to the west, and is relatively level along the longer axis. Due to the dense existing vegetation, views in and out of the site are restricted during full foliage months, with greater visibility between the Fall and Spring months. (See attached photos).

The proposed buildings will be located along the north-south axis, set back approximately 320 feet from Dobbs Ferry Road. Parking will be provided to the south and east of the proposed buildings. In addition, a detention pond will be created at the southwestern end of the property. Most of the vegetation in the southern portion of the property will be cleared and a number of terraces will be created to locate the buildings, the parking areas and the detention pond. The proposed structures will be two stories high, with the height of the tallest structure expected to be 43- feet from the lowest floor level (elevation 103) to the peak of the roof. Character of the Proposed Building

The proposed building will comprise two main segments: an octagonal shaped main church structure; and, a rectangular shaped second structure housing the school. In addition, there will be a connecting segment joining the two portions. Due to the topography of the site, the entire building will be visible from the west, while only views of a single story will be available from the east. Both building portions will have sloping roofs. Proposed architectural design elements include: arched windows at the upper level, projected keystones over the window arches, overhanging eaves and highlighted quoins. The main entrances to the structures will be located at the eastern and western side between the two main portions, and will be identified by covered pediments. Sufficient architectural elements, including numerous window openings, will be provided to break the facades and ensure that the building walls will not dominate the landscape.

Potential Impacts and Mitigation The structures are designed such that the peak of the highest building is at approximately the same elevation as the backyards of the existing homes immediately to the east. This will help to ensure that the new structures will not dominate or significantly impact the existing views from the residences. Also, a significant difference in grade between the residences and the parking areas will act as a visual buffer between the two. See enclosed cross-section.

From the south, the proposed driveway will open up views of the main church structure. Due to the physical layout, the second structure will be hidden. See attached elevations. A deep setback from Dobbs Ferry Road will reduce the visual impact of the large structure since the distant perspective will help to reduce the scale of the structure from the road and neighborhood.

The project will be most visible from the west, where a large portion of the existing vegetation between the buildings and the property boundary will be removed and where the gentler topography does not provide a natural visual barrier. There is, however, existing evergreen and deciduous vegetation outside the property, within the right-of-way for the Sprain Brook Parkway, that will provide a limited visual buffer.

From the north, there are limited locations where a view of the proposed project may be available. Due to the existing single-family house located at the northern end of the site, views to the interior of the property are restricted. In addition, a large part of the existing vegetation will remain intact between the new structures and the single family home, and will assist in providing a fairly strong visual buffer.

See Jt. Exh. 11(b) at I-I-1, 3.

43. As depicted on the site sections contained in the Expanded EAF, the roof of the proposed church was at an elevation lower than the adjacent existing residences to the east. See Trial Tr. at 79:9-80:3 (Schiff). The peak of the roof of the Church was at elevations 145 while the adjacent residence was at elevation 146.9. See id. A six foot fence was also proposed along the property boundary. See id.

44. The Expanded EAF included the following site drawings:1 of 8-Existing Conditions 2 of 8-Overall Site Plan 3 of 8-Site Layout Plan 4 of 8-Site Grading Plan 5 of 8-Site Utility Plan 6 of 8-Site Sediment & Erosion Control Plan 7 of 8-Sediment & Erosion Control Details 8 of 8-Construction Details

See Jt. Exh. 11(e).

2.Traffic and Parking

45. The Town's Zoning Code requires one parking space for every four seats in the Church. See Jt. Exh. 7 at § 285-38E. Therefore, the Church required 125 spaces for its 500 seats. See Trial Tr. at 1278:3-10 (Turner). In its January 2000 submission (the EAF plan), the Church proposed 126 parking spaces.See Trial Tr. at 75:22-77:17 (Schiff).

46. In late 1999, JCE prepared an extensive traffic study that evaluated the traffic impacts associated with the peak conditions of Plaintiffs' project. See Jt. Exh. 11(c); Trial Tr. at 94:6-13 (Schiff); Trial Tr. at 555:20-557:11 (Grealy).

47. The JCE traffic study included computations of traffic volume and turn movements as well as capacity analysis. See Jt. Exh. 11(c).The analyses included by JCE in the traffic study included:

i. existing and future conditions during weekday peak school morning and afternoon hours;

ii. traffic counts conducted on specific dates in March, September and November 1999;

iii. existing and future conditions for the Church;

iv. capacity analyses for signalized and unsignalized intersections. See Jt. Exh. 11(c) at pp. 2-6.

48. JCE concluded:

As summarized above, this study provides a conservative analysis of the peak hours associated with both the "School" and "Church" operation. With the proposed left turn lane and construction of access opposite Spencer Court, traffic can be adequately handled entering the site. In addition due to the nature of the Project ("Church"/"School"), traffic entering and exiting this site would not occur regularly and would occur primarily during the times outlined in section 2 and 3.

See Jt. Exh. 11(c) at p. 8.

49. The Expanded EAF specifically included reference to NYSDOT's conceptual approval of the relocation of access and associated offsite traffic improvements, including road widening and construction of a left turn lane. See Jt. Exh. 11(c) at p. 6.

3. Drainage and Stormwater

50. The Expanded EAF also included a drainage analysis prepared by DRE to examine the impact of construction of the project on existing drainage patterns. See Jt. Exh. 11(d).In its stormwater analysis, DRE examined the potential impacts to drainage patterns during 2, 10, 25 and 100 year storm events. See Jt. Exh. 11(d).DRE concluded that the installation of the underground detention gallery and the detention basin mitigate the increase in the peak rate of runoff after construction. See Jt. Exh. 11(d).The DRE report contained watershed maps and detailed drainage calculations for the 2, 10, 25 and 100 year storm events. See id.

viii. The Town's Review

51. Upon submission of the Expanded EAF, on January 17, 2000, the Church again requested that the Town Board refer the application to the Planning Board for a report and recommendation on the site plan. See Jt. Exh. 11(a). The Town did not refer the application. See Trial Tr. at 144:6-18 (Schiff).

52. On February 8, 2000, Town Building Inspector Lucido asserted that the Town's Zoning Ordinance requires that the church have for its school "a curriculum approved by the Board of Regents of the State of New York." In fact, non-public schools are not required by State Law to be registered with the Board of Regents under 8 N.Y.C.R.R. §100.26(p) and only the local school board can approve the curriculum of a non-public school. See 8 N.Y.C.R.R. §100.26(p).

53. Fire Chief Mauro reviewed the EAF plans submitted on January 17, 2000 and responded by letter on February 11, 2000 as follows:

The Fairview Fire Department has reviewed the plans in the above reference[d] case. Our comment is that this is a church and a school building. The construction standards for the school should be covered under the New York State Department of Education. It should be maintained under the New York State Department of Education inspection standards.

Please be advised that Dobbs Ferry Road is the major thoroughfare that connects both ends of the Fairview Fire District. It is used extensively by fire apparatus traveling east and west. In addition, it is a major entry point for the Sprain Brook Parkway. Provisions should be made for fire apparatus to safely maneuver in a response mode.

See Pl. Exh. 22.

54. By letter dated March 28, 2000, Plaintiffs again requested that the Town place the Church's application on its public agenda and refer the application to the Planning Board for a report and recommendation. See Jt. Exh. 13.

55. By letter dated April 11, 2000, Plaintiffs yet again requested that Town place the Church's application on its public agenda and refer the application to the Planning Board for a report and recommendation. See Jt. Exh. 14.

56. By April 25, 2000, the Town had replaced Town Planning Commissioner Lopez with AKRF, Inc. as the Town's Commissioner of Planning. AKRF provided comments on all aspects of the Church's land use application including traffic, engineering and planning. Russo was an employee of AKRF from before November 1998 through the advent of this litigation. See Trial Tr. at 882:18-21 (Russo). Russo worked on the Fortress Bible Church matter.

57. By letter dated April 26, 2000-three months after submission of the January 2000 application-the Greenburgh Town Attorney stated that Fortress Bible Church would be placed on the Town Board's May 9, 2000, agenda, for referral to the Planning Board and determination of environmental significance under SEQRA. However, it was not placed on that agenda.

58. The Church's planning consultant sent a letter dated April 27, 2000, to Supervisor Feiner, urging the Town to make a determination of environmental significance:

In the nearly year and a half during which the Church has been discussing this project with the Town, traffic has been the only significant impact issue that has been raised. By preparing an in-depth traffic study and then agreeing to the extensive mitigation measures outlined above-measures which would help to improve existing traffic conditions which pre-date this application-the Fortress Bible Church has eliminated the potential for its project to create any significant environmental impacts. Without such adverse impacts, we believe that a Positive Declaration and DEIS are not required under SEQRA. Thus, we respectfully request that the Town Board issue a Negative Determination in conjunction with this application.

See Jt. Exh. 15.

59. The Church's application was not addressed at the May 9, 2000, Town Board Meeting.

d. The Town's Determination of Significance

i. Lead Agency's Options

60. Under SEQRA, the Town Board, as Lead Agency, could have issued a "Negative Declaration of Significance," a "Conditioned Negative Declaration of Significance," or a "Positive Declaration of Significance." A Negative Determination of Significance, or "Negative Declaration" is issued when "the implementation of the action as proposed will not result in any significant adverse environmental impacts." A Conditioned Negative Declaration is a declaration determining that a project will have no impact on the environment "assuming that the applicant provide certain improvement measures as part of the site plan." A Positive Determination of Significance or "Positive Declaration" is a written statement prepared by the Lead Agency indicating that implementation of the action as proposed may have a significant adverse impact on the environment and that an environmental impact statement will be required. See 6 N.Y.C.R.R. §617.2(ac).

61. Following the issuance of a positive declaration by a lead agency, an applicant is required to prepare an Environmental Impact Statement. A Positive Declaration on the Fortress Bible Church application prolonged the SEQRA process and caused the Church to incur significant expense. See Trial Tr. at 957:25-958:6 (Russo).

ii. Evidence that a Positive Declaration Was Unnecessary

62. The Church's Expanded EAF provided the Town with more information and analysis than is typically provided at the EAF stage of SEQRA. See Trial Tr. at 96:24-97:25 (Schiff).

63. By letter to the Town Board dated April 27, 2000, the Church's planning consultant advised that the project would not result in any significant adverse environmental impacts:

1. The proposed use is a permitted use within the existing R-10 zoning.

2. The site has two frontages: Dobbs Ferry Road and Pomander Drive, from which the existing house on the site is currently accessed. Based on its initial meetings with neighborhood residents, at which they stressed that they preferred that church traffic not come through the neighborhood, the church has proposed to limit access to the Dobbs Ferry Road frontage (except for the house).

3. Initial site plan reviews by Town staff identified concerns regarding the Dobbs Ferry Road access. As a result, the entrance was redesigned to align with Spencer Court. Moreover, the church's traffic consultants, John Collins Engineers, prepared a detailed traffic analysis and met with the New York State Department of Transportation to explore possible improvements to the access. As a result, the [NYS]DOT agreed to permit the use of State-owned right-of-way to accommodate the installation of a left turn lane into the site.

4. In January 2000, the church submitted a long Environmental Assessment Form (EAF) with attachments: Visual EAF Addendum plus photographs and cross-sections; drainage analysis; and, a full traffic study similar to what would be required for a DEIS. (Note that the analysis shows that, with the agreed to prohibition on left turns out of the church driveway, only 10 trips would travel to or from the church through the 100A/100B intersection during the weekday peak hour.).

5. An additional meeting was then held with the Town Planning Commissioner, the Town Engineer and the Chief of Police to discuss the traffic access issue. Based on the Chief's concerns, it was decided that a traffic signal at the new entrance would be desirable. Again, discussions were held with the [NYS]DOT. As a result, a plan has been developed which provides such a signal, coordinated with a signal at the Sprain Brook Parkway ramp. In addition, the church has offered to restrict exiting traffic to right turns out only, and to design the access so as to ensure that this restriction can be enforced. Finally, the church agreed to provide a traffic control agent at its entryway at critical times. It is estimated that the roadway and traffic improvements would cost approximately $200,000, not including the traffic agent.

See Jt. Exh. 15.

64. The letter also advised the Town that, as the project was an "Unlisted Action" under SEQRA, the Town Board could issue a Conditioned Negative Declaration to impose conditions to mitigate any identified impacts, which would provide a mechanism to formalize the already proposed mitigation measures prior to site plan approval. See Jt. Exh. 15.

65. Russo is employed with the firm of AKRF where he runs the Traffic and Transportation Department of the firm's White Plains office as a Technical Director and also serves as Project Manager on preparation of EAFs. See Trial Tr. at 882:19-883:4 (Russo). As an employee of AKRF, Russo personally works with municipalities. See Trial Tr. at 884:10-12 (Russo).

66. AKRF represents various private clients and municipalities as environmental planners, including the Village of Mount Kisco, Town of Southeast, Town of Goshen and, previously, City of New Rochelle and the Town of Greenburgh. See Trial Tr. at 883:5-14 (Russo). During AKRF's tenure as Commissioner of Planning for the Town of Greenburgh, Russo worked directly with the Town Board and the Planning Board. See Trial Tr. at 887:3-13 (Russo).

67. Town Planning Commissioner Russo attended Town Board work sessions, meetings, executive sessions, and public hearings during the time that AKRF served as Commissioner of Planning for the Town of Greenburgh. See Trial Tr. at 887:25-888:10 (Russo).

68. AKRF and Planning Commissioner Russo were involved with the Fortress Bible Church project from the EAF stage. Russo was familiar with the Fortress Bible Church land use application and, in fact, had conducted several site visits to the Pomander Drive property.

69. Environmental issues that Town Planning Commissioner Russo identified during the EAF review included traffic as the major issue, as well as site planning issues of landscaping and lighting. See Trial Tr. at 909:21-25 (Russo). These three issues were the only issues identified by Russo prior to the Town's determination of significance. See Trial Tr. at 910:1-5 (Russo). Based on his review of the project, prior to a determination of significance, Russo believed that the Town could grant a Negative Declaration "considering traffic was the primary issue and the applicant['s] engineer had submitted a traffic study and they were willing to mitigate whatever impact they had from a traffic standpoint from the project." See Trial Tr. at 912:16-21 (Russo). Town Planning Commissioner Russo discussed his belief that a Negative Declaration could be granted by the Town Board on the Fortress Bible Church project with the Town Board itself. See Trial Tr. at 912:22-913:3 (Russo).

70. Prior to the Town's determination of significance, Town Planning Commissioner Russo and JCE communicated regarding the Fortress Bible Church project's impacts on traffic. See Jt. Exh. 16; Jt. Exh. 17; Jt. Exh. 19; Jt. Exh. 20. On June 21, 2000, JCE sent Russo a submission responding to comments about traffic raised at a May Town Hall meeting. See Jt. Exh. 16. Russo responded to the submission by memo dated June 23, 2000, requesting additional information. See Jt. Exh. 17. JCE responded by memo dated June 26, 2000, addressing Russo's requests. See Jt. Exh. 18. On July 12, 2000, Russo responded, again requesting additional information. See Jt. Exh. 19. JCE responded by memo dated July 17, 2000, again addressing Russo's concerns. See Jt. Exh. 20. Plaintiffs proposed numerous means of mitigation, including creating a new left turning lane from Dobbs Ferry Road into the proposed driveway, creating a proposed right turn out only, adding a proposed traffic light to be coordinated with improved operations of existing traffic signal, and adding personnel to monitor traffic and coordination of scheduling of services with other churches in the area. See Trial Tr. at 917:20-918:20 (Russo).

71. Prior to the Town's adoption of a Positive Declaration, Town Planning Commissioner Russo believed that mitigation measures proposed by Fortress Bible Church relating to traffic were "adequate" and "a good solution." See Trial Tr. at 918:21-919:6 (Russo).

72. Town Planning Commissioner Russo advised the Town Board that the Board, as lead agency, could issue a Conditioned Negative Declaration on the Fortress Bible Church project. Russo believed that on the Fortress Bible Church project, a Conditioned Negative Declaration could be an appropriate designation "considering that [] Fortress Bible was willing to put in traffic improvement measures right up front." See Trial Tr. at 922:5-14 (Russo).

73. During Russo's review of the Fortress Bible Church project in his capacity as Town Planning Commissioner, Fortress Bible Church never refused to answer any questions he posed or to provide any mitigation measure requested by Russo. See Trial Tr. at 919:11-920:5 (Russo).

iii. The Town's Demand for Payment or Donation of a Fire Truck

74. On July 11, 2000, Reverend Karaman, an attorney for the Church, Church Planning Consultant Schiff, and a representative of JCE attended a Town Board Work Session meeting at Town Hall. In attendance on behalf of the Town, in addition to the Town Board members, were the Town Attorney, Town Attorney Susan Mancuso, and Town Planning Commissioner Russo. The purpose of this work session was to discuss the Fortress Bible site plan and the Town's determination of environmental significance. See Trial Tr. at 920:6-16 (Russo); Trial Tr. at 108:21-109:1 (Schiff).

75. In response to questions at the July 11, 2000, work session, the Supervisor and Board responded that the main complaint about the Church project was traffic. However, Supervisor Feiner stated that "50 percent" of the issue was traffic, the other "50 percent" was the Church's tax exempt status. During that work session, Supervisor Feiner asked the Church to donate a fire truck to the Fairfiew Fire District or to make some other payment in lieu of taxes ("PILOT") to the Town of Greenburgh. See Stipulation No. 48.

76. Reverend Karaman understood Supervisor Feiner's request for donation of a fire truck to be a basis for favorable processing of the application by the Town. See Trial Tr. at 1618:18-1619:1 (Karaman).

77. During her deposition, when asked whether she was present at the Town Board meeting when Supervisor Feiner requested that the Church donate a fire truck, Councilwoman Weinberg initially laughed. See Dep. Tr. at 81:9-19 (Weinberg). When asked whether she believed the request was appropriate, she answered "[n]o comment." See Dep. Tr. at 81:20-22 (Weinberg). At trial, she stated that the request was inappropriate because of the context in which it might be taken by an applicant with a pending land use application. See Trial Tr. at 1939:22-1940:8 (Weinberg).

78. Councilman Bass also admitted that Supervisor Feiner's request that the Church donate a fire truck to Fairview Fire District was inappropriate. See Dep. Tr. at 56:21-24 (Bass). He stated that "[I]t's not the proper way to proceed to it with an applicant." See Dep. Tr. at 56:21-24 (Bass); see also Trial Tr. at 2159:9-11 (Bass).

79. Supervisor Feiner testified that Fortress Bible Church's tax exempt status was "hampering or hindering" approval of its land use application. See Dep. Tr. at 166:13-18 (Feiner); see also Trial Tr. at 2391:14-2393:23 (Feiner).

80. It is apparent that the Church's status as a tax exempt religious organization was a source of consternation for some members of the Town Board. For example, one board member stated that she did not want "another church" in that area of Greenburgh. See Trial Tr. at 908:11-17 (Russo) (describing statement by Councilwoman Weinberg). Also, Supervisor Feiner supported locating a joint Town Hall/public library facility in the vicinity of the Pomander Drive property. See Trial Tr. at 2379:24-2380:9 (Feiner). Supervisor Feiner admitted that the Fall 2002 purchase of a large commercial building to be used as the new Town Hall resulted in a large commercial property being eliminated from the Town's tax roll. See Trial Tr. at 2401:22-2402:11 (Feiner). Supervisor Feiner acknowledged that the old Town Hall, also located in the Fairview Fire District, was never restored to the tax rolls when the Town occupied the new Town Hall and that, under the current plans of the Town, that property would not return to the tax rolls. See Trial Tr. at 2402:4-8 (Feiner). Furthermore, Supervisor Feiner testified that it was acceptable to him that the commercial property purchased to serve as the new Town Hall was eliminated from the Town's tax rolls. See Trial Tr. at 2402:12-15 (Feiner).

81. Saccardi is a principal in the planning and development consulting firm of Saccardi & Schiff. See Trial Tr. at 980:25-981:5 (Saccardi).Saccardi has more than thirty-siX years experience as a land use planning consultant. See Trial Tr. at 981:25-982:5 (Saccardi). Saccardi worked as a consultant to the Town of Greenburgh prior to this case and has also represented land use applicants with applications pending in the Town of Greenburgh. See Trial Tr. at 982:6-983:5 (Saccardi).Saccardi has personally appeared before the Town Board, Planning Board and Zoning Board of Appeals of the Town of Greenburgh. See Trial Tr. at 982:18-21 (Saccardi).

82. Church Planning Consultant Saccardi testified that, in his twenty-eight years of experience, he was only aware of one instance in which a not-for-profit land use applicant was asked to contribute/make a donation in association with its land use application, which was the Hebrew Home in the Town of Greenburgh wherein the applicant contributed a fire truck as part of the project. The contribution of a fire truck by the Hebrew Home as a land use applicant in the Town of Greenburgh was done during Supervisor Feiner's tenure as Supervisor of the Town of Greenburgh. Saccardi testified that he has never been involved in discussions in other municipalities concerning the potential for tax exempt land use applicants to make donations. See Trial Tr. at 1026:4-9 (Saccardi).

83. Although Defendants at trial sought to characterize Supervisor Feiner's demand for a financial donation or donation of a fire truck as a PILOT, it is not. Church Planning Consultant Saccardi stated that his experience with PILOTs is that they are usually conducted through an industrial development agency whereby the industrial development agency owns property, leases the property to a developer and the developer pays a lease payment/PILOT payment equal to or in some cases less than taxes which would be due on the property. See Trial Tr. at 1026:19-24 (Saccardi).

84. Prior to July 19, 2000, the Church informed Supervisor Feiner and the Town Board that the Church would not agree either to donate a fire truck to the Fairview Fire District or to make a PILOT. See Stipulated Fact No. 49. On or about July 19, 2000, the Town issued the Positive Declaration. See Stipulated Fact No. 54.

iv. The Town's Hostility Toward the Church

85. During a meeting early in the SEQRA process, Councilwoman Weinberg, then a member of the Board, stated that she did not want the Fortress Bible Church project and that "we do not need another church in Greenburgh, especially in that area of Greenburgh where there are already several religious institutions." See Trial Tr. at 908:11-16 (Russo). Councilwoman Weinberg instructed Town Planning Commissioner Russo to "help stop the project or kill the project." See Trial Tr. at 908:16-17 (Russo). Russo testified that Councilwoman Weinberg told him to stop or kill the project on more than one occasion. See Trial Tr. at 908:16-25 (Russo).

86. Town Planning Commissioner Russo testified that, in reaction to Councilwoman Weinberg's statement at the meeting that Weinberg did not want another church in Greenburgh and to Weinberg's instruction to Russo to try to stop the Fortress Bible Church project, Councilwoman Juettner shook her head "yes" and banged her hand on the table. See Trial Tr. at 906:3-7 (Russo).

87. Russo testified that, based on his experience and review of the Fortress Bible Church application, the Town Board "could have gone with a negative declaration," rather than issuing a positive declaration "which required the preparation of a full Environmental Impact Statement which is a long, expensive process to go through." See Trial Tr. at 913:10-20 (Russo).

88. This Court finds that Town Planning Commissioner Russo's testimony was credible. AKRF's termination by the Town did not involve Russo. Russo had no direct interest in the outcome of AKRF's fee dispute with the Town and, in fact, Supervisor Feiner wanted to retain Russo as Planning Commissioner after AKRF's termination. See Trial Tr. at 979:16-25 (Russo).

v. The Positive Declaration

89. At its July 19, 2000, meeting, the Town Board adopted a Positive Declaration pursuant to SEQRA in connection with the development of the Pomander Drive property, thereby triggering the requirement that Fortress Bible Church undertake the costly task of preparing a DEIS and completing the entire SEQRA review process. See Stipulated Fact No. 54; Second Amended Complaint at ¶ 50; Answer to Second Amended Complaint; Jt. Exh. 21.

90. In its Positive Declaration, the Town provided the following basis for issuing the Positive Declaration:

The proposed action would disturb a site which contains a relatively large wooded area adjacent to the Sprain Brook Parkway. The proposed action would alter the existing visual character of the Sprain Brook Parkway and the neighboring residential neighborhood. Traffic access, pedestrian access and safety concerns would possibly be significant due [to the] access location adjacent to the Sprain Brook Parkway access ramps.

See Jt. Exh. 15.

91. However, when asked at trial to identify which of the items in the Positive Declaration the Church had failed to mitigate prior to issuance of the Positive Declaration, Town Planning Commissioner Russo did not name any issues, but rather stated the Church had been cooperative and responsive to the Town's concerns. See Trial Tr. at 919:14-920:5 (Russo).

92. Prior to issuance of the Positive Declaration, based on his technical review of the correspondence with Fortress Bible Church, Town Planning Commissioner Russo was satisfied that Fortress Bible Church "had developed a good mitigation plan" regarding traffic. See Trial Tr. at 919:14-920:2 (Russo).

93. Prior to issuance of the Positive Declaration, Town Planning Commissioner Russo believed that proposed traffic mitigation by Fortress Bible Church would include:

i. a left turn lane into the driveway which would have its own lane, such that it "would not queue and block other traffic";

ii. a right turn only exit from the project site, such that it would "keep the bulk of the traffic between the site and the Sprain Brook Parkway";

iii. a traffic signal that was going to "improve operations by coordinating [the proposed] traffic signal with [an existing] traffic signal to [e]nsure that there wasn't a lot of queuing or backing up;"

iv. if necessary, personnel to monitor traffic "to [e]nsure that they would have no back up or traffic conflict"; and

v. if necessary, services staggered with the services of other churches in the area, to avoid having " everybody going and coming at the same time."

See Trial Tr. at 917:23-918:20 (Russo).

94. A Positive Declaration was not warranted as Fortress Bible Church had mitigated all identified potential adverse impacts.Prior to the issuance of a Positive Declaration under SEQRA, Plaintiffs had informed the Town that NYSDOT had provided conceptual approval and review of improvements to the site access on Dobbs Ferry Road to adequately mitigate any traffic impacts from the project. See Jt. Exh. 16.Fortress Bible Church did not refuse to implement any traffic mitigation measures proposed by or to provide any information requested by the Town's then-Commissioner of Planning and/or traffic consultant. See Trial Tr. at 919:14-920:5 (Russo). In fact, Plaintiffs repeatedly revised their proposal and provided additional information to comply with the Town's comments and requests. See Jt. Exh. 17; Jt. Exh. 18; Jt. Exh. 19; Jt. Exh. 20.

95. Church Planning Consultant Saccardi testified that neither of the other expanded EAFs on which he represented an applicant in the Town received a Positive Declaration. See Trial Tr. at 982:22-983:12 (Saccardi). The Town Board, however, has adopted Conditioned Negative Declarations for other land use applicants. See Pl. Exh. 78; Trial Tr. at 2366:16-25 (Feiner).

96. The Court finds that the Town used the SEQRA process and the issuance of a Positive Declaration punitively because of the Church's refusal to make a significant donation of value or monetary payment to the Town and because of certain Town Board members' desire to delay the project and increase the expense of the SEQRA process for the Church. The Town Board's Positive Declaration under SEQRA for the Fortress Bible Church project was not fully justified on this record and was capricious. move to findings??

e. The Scoping Phase

97. After adoption of the Positive Declaration on July 19, 2000, the Church submitted to the Town a draft DEIS scoping outline. See Jt. Exh. 22.In accordance with SEQRA, the purpose of the Scoping Outline is to identify specific potentially significant adverse impacts and to eliminate consideration of those impacts that are irrelevant or non-significant. See Trial Tr. at 67:24-68:5 (Schiff). Scoping is the process by which the Lead Agency identifiesthe potentially significant adverse impacts related to the proposed action that are to be addressed in the DEIS, including the content and level of detail of the analysis, the range of alternatives, and the mitigation measures needed. See 6 N.Y.C.R.R. §617.2(af); see also Trial Tr. at 67:24-68:5 (Schiff).

98. On August 16, 2000, the Church held an informational meeting with the property's neighbors at the property's caretaker's house. Town Planning Commissioner Russo attended the meeting. See Stipulated Fact No. 27; Jt. Exh. 25.

99. Russo wrote a memo to Supervisor Feiner concerning Russo's attendance at the August 6, 2000, meeting between Fortress Bible Church and neighbors of the Pomander Drive property stating:

At the meeting the applicant presented a revised site plan that addressed some of [the] issues raised by the public at their previous meeting. The public continued to express concerns regarding screening, lighting, and traffic. The applicant listened to these concerns and stated that they would continue to work with the public to address these issues.

Some of the people in attendance that night expressed support of the project because the Fortress Bible project's only access point is located on Dobbs Ferry Road.

....

The meeting was very professional and the applicant seemed to be responsive to the community.

See Jt. Exh. 25.

100. The Town Board convened a public hearing on the scoping review on August 23, 2000. See Jt. Exh. 26.The Town Board-over the Church's objection-adjourned the public hearing of the August 23, 2000 scoping session. See id. The stated basis for the adjournment was that no stenographer was present. See id. However, the Town Clerk was present and taking minutes and the meeting was videotaped. See Jt. Exh. 26; Jt. Exh. 28; Trial Tr. at 111:10-112:1 (Schiff). Nevertheless, on motion of Councilwoman Weinberg, the Town Board voted not to proceed with the public hearing and adjourned it until September 13, 2000.See Jt. Exh. 26.

101. Minutes from the Town Board meeting of August 23, 2000, also reflect that in response to a constituent's suggestion that a formula be devised for a payment in lieu of taxes by not-for-profit property owners, Supervisor Feiner commented that a task force was being formed to "lobby for" such payments.*fn6 See Jt. Exh. 26.

102. During the September 13, 2000, public hearing on the proposed scope for the Fortress Bible Church project, a community member made derogatory comments concerning Plaintiffs and the religious activities he asserted would occur at the proposed building project to which no member of the Town Board objected. See Pl. Exh. 135; Trial Tr. at 1627:8-25 (Karaman); Trial Tr. at 118:9-11 (Schiff). For example, the community member stated:

103. During the September 13, 2000, public hearing on the proposed scope for the Fortress Bible Church project, a community member made derogatory comments concerning Plaintiffs and the religious activities he asserted would occur at the proposed building. See Pl. Exh. 135 (enclosure at pp. 32-34); Trial Tr. at 118:9-11 (Schiff). For example, the community member stated:

... you may recall what happened in Ghana [Plaintiffs proposed correction to "Guyana"] years ago. Ghana [Plaintiffs proposed correction to "Guyana"] that's a Caribbean island. Jimmy Jones and the rest of them. I know that this Bible Church advocates-I mean some of the churches like this Bible Church have a tendency sometimes to go extreme....

I come from the Bronx, you know, with my family, just for a better place and a place with less noise and also try to give my life. In fact, it is very, very sorry we may be pushed out of this very place.

You know. So we continue to keep on going until one day we don't know where else we are going to be. Please, at this point my kids, my wife and myself, we are opposed to the establishment of this Bible Church. Thank you. (Applause)

See Pl. Exh. 135 (enclosure at pp. 32-34). No member of the Town Board took exception to any part of this statement. See id. at p. 34; Trial Tr. at 118:9-11 (Schiff).

104. At the close of the September 13, 2000, hearing Supervisor Feiner indicated that he would appoint a person from the neighborhood association as a Deputy Supervisor. See Jt. Exh. 33; Pl. Exh. 135 (enclosure at pp. 57-58). Feiner stated "that person will be notified whenever there is a meeting, will receive copies of all the documents, and will be able to attend closed and open meetings when we [the Town Board] are discussing the project." See Jt. Exh. 33; Pl. Exh. 135 (enclosure at p. 58).

105. Plaintiffs, by letter dated September 28, 2000, objected to this appointment. See Jt. Exh. 33.

106. By letter dated October 4, 2000, Supervisor Feiner wrote to residents again announcing his intent to appoint a resident as Deputy Supervisor who "would attend open and closed meetings as [the Town] review[s] the application." See Pl. Exh. 29. In the letter, he noted that Plaintiffs objected to the appointment of a representative from the neighborhood association, but stated that "lawyers or developers cannot tell th[e] [T]own what [it] can or cannot do." See id.

107. By letter dated October 13, 2000, Supervisor Feiner informed Plaintiffs that he had appointed Blase Spinozzi, President of the Hilltop Farms Civic Association, as Deputy Town Supervisor. See Stipulated Fact No. 69; Jt. Exh. 36. In announcing his choice, Supervisor Feiner stated that "I have the power to appoint anyone I want as Deputy Town Supervisor." See Jt. Exh. 36.

108. Supervisor Feiner was aware at the time he appointed Spinozzi that Spinozzi had previously opposed the Fortress Bible Church project and that, at the time he was appointed, he continued to oppose the project. See Stipulated Fact No. 67; Stipulated Fact No. 70; Feiner Tr. at 253:12-24.

109. The Town Board approved Spinozzi's appointment on October 11, 2000. See Jt. Exh. 37.

f. The Town's Efforts to Delay the Project

i. The Scope

110. The Town Board adopted the Scope for the DEIS on October 2, 2000. See Jt. Exh. 34.

111. The Scope for a DEIS is the "outline of all the studies that need to get done, the details of which traffic intersection[s] should be studied, which views should be looked at and all. But it's also supposed to narrow the focus of the EIS to those issues that are truly of concern." See Trial Tr. at 112:10-16 (Schiff); see also 6 N.Y.C.R.R. §617.8(f).

112. Many, if not most, of the traffic issues to be listed in the Scope and to be addressed in the DEIS had already been studied and the results provided to the Town. Compare Jt. Exh. 34 with Jt. Exh. 11(c); Jt. Exh. 16; Jt. Exh. 18; Jt. Exh. 20.

113. Only five alternatives were required to be studied in the DEIS, per the Town's adopted scoping document. See Jt. Exh. 34. Those alternatives were "no build," a single family residential alternative, a no variance alternative and two alternative accesses. See id. Alternative Access # 1 (Alternative D) was to assess the use of Pomander Drive and/or the adjacent culs-de- sac, rather than from Dobbs Ferry Road, as points of access. See id. Alternative Access # 2 (Alternative E) was to assess access from Pomander Drive and/or the adjacent culs-de-sac, as well as from Dobbs Farry Road. See id.

114. In the DEIS, the Church added an extra alternative, Alternative F, which studied an alternative site layout for the proposed structure. See Jt. Exh. 59 at XIII-8-10.

115. The adopted Scope required that various topics be addressed in the DEIS. See Jt. Exh. 34.The Scope did not require that Plaintiffs study construction of a smaller building or facility. See id.

116. At trial, Defendants argued that the Church had failed to comply with a Town request to study an alternative for a smaller facility. See Trial Tr. at 3133:17-3134:12 (Insardi). However, the Town never requested that the Church do so. See Trial Tr. at 244:2-9 (Schiff). In fact, the Court specifically gave Defendants the opportunity to produce any document evidencing such a request by Defendants to the Church. See id. at 3134:5-14. Defendants failed to produce any such document at trial. See Trial Tr. at 3133:17-3134:12 (Insardi).

ii. The DEIS

117. On or about April 9, 2001, the Church submitted a lengthy DEIS to the Town Board. See Stipulated Fact No. 64; Jt. Exh. 43(b).

118. Every chapter required by the scope was included in the DEIS. See Jt. Exh 34; Jt. Exh. 43(b).

119. The information in the DEIS included:

i. a summary of the potential impacts and proposed mitigation measures;

ii. preliminary floor plans and building elevations;

iii. a description of impact on community services, including police, fire, emergency services, and sanitation;

iv. proposed landscape plan;

v. a comprehensive traffic study;

vi. a noise study;

vii. a sketch plan and narrative summary for each topic required to be evaluated in the DEIS for all of the alternatives included in the DEIS;

viii. illustrations of both traffic volume and traffic flow for the Pomander Drive alternatives (Alternatives D and E);

ix. a table summarizing the impact on each study area for each of the six alternatives studied and comparing those to the proposed action.

See Jt. Exh. 43(b).

120. The DEIS included a revised proposed plan which maintained the EAF Plan's off-site traffic improvements of road widening, restriping, and construction of a left hand turn lane (as conceptually approved by NYSDOT), but shifted the buildings and parking away from the residences and closer to the Sprain Brook Parkway in response to requests from the Town and neighbors. Compare Jt. Exh. 43(c) (DEIS Plan) with Jt. Exh. 11(e) (EAF Plan); see also Trial Tr. at 120:3-121:1 (Schiff).

121. The DEIS Plan included 127 parking spaces, exceeding the minimum parking requirements of the Greenburgh Town Code.

122. Upon receipt, Russo and other members of AKRF, in their capacities as Planning Commissioner for the Town, reviewed the DEIS, and produced a comment letter dated June 1, 2001. See Jt. Exh. 50. In response, Fortress Bible Church submitted a revised DEIS. See Jt. Exh. 53. Russo responded by memo dated September 14, 2001, stating that the DEIS had been "well revised" and requesting additional information regarding certain concerns. See Jt. Exh. 55.

123. Russo, in his capacity as Town Planning Commissioner, had no concerns regarding the responsiveness of Fortress Bible Church and its consultants to questions generated by the Town concerning the DEIS. Town Planning Commissioner Russo stated that Fortress Bible Church was "responsive to our comments." See Trial Tr. at 927:19-23 (Russo).

124. The Church did not reject or fail to provide any of the revisions AKRF requested during the DEIS process. See Trial Tr. at 927:24-928:3 (Russo).

125. By letter dated April 17, 2001, Fortress Bible Church was advised that the Town had adopted a moratorium on approvals of certain applications that involved, among others, steep slopes. See Stipulated Fact No. 41.

126. By letter dated April 25, 2001, the Church advised the Town that it wanted its application to continue to be reviewed by the Town Board and Planning Board as necessary. See Jt. Exh. 47.

127. On October 24, 2001-more than two and one half years after the Church filed its initial application and six and one half months after submission of the DEIS-the Town accepted the DEIS as complete. See Stipulated Facts No. 42; Stipulated Fact No. 65; Jt. Exh. 59.

128. The Town's own planning consultant admitted that acceptance by the Town Board of the DEIS "indicates that the lead agency, the [T]own in this instance, believed or acknowledged that the document had addressed all the issues that the [T]own had asked the applicant to address in a scope." See Trial Tr. at 1052:10-23 (Turner).

129. At the time of acceptance of the DEIS, the plans contained in the DEIS and proposed by the Church identified adverse impacts which were mitigated to the greatest extent practical, and the Church's plans satisfied all reasonable landscaping, traffic and on-site parking concerns.

130. The landscaping plan contained in the DEIS and adopted as complete by the Town Board was acceptable to Town Planning Commissioner Russo. See Trial Tr. at 930:2-13 (Russo).

131. Town Planning Commissioner Russo could not recall any member of the Town Board having any concern regarding retaining walls, flooding of downgradient property, internal traffic circulation, nor sight distance at the access driveway at the time the DEIS was accepted as complete in October 2001. See Trial Tr. at 930:16-931:23 (Russo).

iii. Evidence of the Town's Intent

1. Demands by Supervisor Feiner

132. On May 3, 2001, Reverend Karaman met with Supervisor Feiner to discuss processing the Fortress Bible Church project. See Stipulated Fact No. 29. During that meeting, Supervisor Feiner suggested to Reverend Karaman that the Church give a sum of money to the Fairview Fire Department each year. See Stipulated Fact No. 59; Trial Tr. at 1619:12-1620:15 (Karaman); Dep. Tr. at 102-105 (Feiner).

133. Reverend Karaman testified that when he met with Supervisor Feiner on May 3, 2001, he asked: "What can I do, and how can you help me, to move the building of my church along?" See Trial Tr. at 1620:1-6 (Karaman). Supervisor Feiner suggested that Reverend Karaman meet with neighbors and "[p]ay some taxes to the Fire Department, a thousand or fifteen hundred dollars." See id. at 1620:7-12. Reverend Karaman testified about his conversation with Supervisor Feiner: "And he said-and I will quote-'This will go a long way.'" See Trial Tr. at 1620:12-13 (Karaman).

134. Councilman Bass was present when Supervisor Feiner, at a public Town Board work session, commented about the possibility of Fortress Bible Church donating a fire truck or other PILOT to the Town. See Trial Tr. at 2140:11-17 (Bass).

135. The meeting at which Councilman Bass was present must have occurred after February 2001, as Bass was not a member of the Town Board until that time. See Trial Tr. at 2130:14-18 (Bass).

136. Thus, Supervisor Feiner suggested that Fortress Bible Church donate a fire truck on at least two occasions: in 2000 and some time after February 2001.

2. Reliance on the Steep Slope Ordinance

137. AKRF served as Planning Commissioner until January 2002. See Stipulated Fact No. 25.

138. During the time that AKRF served as Planning Commissioner for the Town of Greenburgh, AKRF employee John Feingold was working on issues concerning steep slopes and wetlands law for the Town. See Trial Tr. at 958:10-15 (Russo).

139. Town Planning Commissioner Russo recalled a discussion with Feingold that occurred in Town Hall, the content of which was that the steep slopes and wetlands law contemplated by the Town "would be one way to stop the Fortress Bible project." See Trial Tr. at 959:3-25 (Russo).

3. Instructions to Kill the Project

140. Councilwoman Weinberg repeated her instruction to Town Planning Commissioner Russo to try to "kill" the Fortress Bible Church project at a subsequent meeting. See Trial Tr. at 908:20-909:18 (Russo) (clarifying two separate comments by Weinberg, the first of which was overheard and approved of by Councilwoman Juettner).

4. Te Town Board's Request for Help in Averting Consequences Under RLUIPA

141. Two months after the Town Board accepted the DEIS as complete, Supervisor Feiner engaged in the following e-mail exchange with a constituent, Jason Sapan:

Paul,

I want to register my total disdain for the thought that the Town Board will not stand up against the application of the Fortress Church to develop on Dobbs Ferry Road........

I fully understand the difficulty of fighting against religious institutions, however, it is the duty of local government to represent their constituents and not those of outsiders. I expect to see the Town Board oppose this even if that means a loss in court somewhere down the road. We should not be so complacent to the deterioration of our quality of life so easily.

Jason Sapan * * * thanks for calling yesterday. Although I anticipate that the Town will vote against this, I think we have to do as much research as possible re: new federal law which makes it very difficult to stop religious institutions. Any research or ideas you could provide us with to help us would be appreciated. I'll have the Town work on this but the more ideas the better[.] paul feiner * * * Paul, Can I get a copy of the new Federal regulation so I can start my research?

Jason

I... will ask [Town Attorney] Susan Mancuso to send you a copy of the federal laws. It was just signed into law last year. paul feiner See Pl. Exh. 35.

142. When asked what discussion he had with Sapan regarding the Fortress Bible Church application, Supervisor Feiner stated: "I don't recall any discussion." See Dep. Tr. Vol. 3 at 45:12-14 (Feiner). Supervisor Feiner's attention then was directed to his statement in an e-mail to Sapan: "Thanks for calling yesterday." See id. at 45:15-16.Supervisor Feiner stated that he did not recall the conversation but admitted that he "might have" had such a telephone conversation with Sapan. See id. at 45:15-20.

143. When asked at trial whether he anticipated as early as December 2001 that the Board would not permit Fortress Bible Church to develop its property, Supervisor Feiner explained his "anticipation" as based on traffic concerns. See Trial Tr. at 2445:25-2447:11 (Feiner). He further stated that those traffic concerns were brought to his attention by "[t]he [P]olice [C]hief and Mr. Maris." See Trial Tr. at 2447:14-18 (Feiner).However, Police Chief Kapica testified that he never discussed the Fortress Bible Church matter with Supervisor Feiner. See Trial Tr. at 1973:20-1974:2 (Kapica). Further, Town Traffic Consultant Maris was not retained by the Town on any matter until early 2002-months after the e-mail in which Supervisor Feiner conveyed his anticipation that the Church's application would be denied. See Trial Tr. at 3254:8-15 (Maris); see also Stipulated Fact No. 31; Stipulated Fact No. 32.*fn7

144. When confronted at trial with his December 2001 e-mail exchange with Sapan, Supervisor Feiner admitted that the assistance he requested from Sapan was for ideas, in light of RLUIPA, of a way in which the Town could vote against the Fortress Bible Church application. See Trial Tr. at 2459:10-14 (Feiner).

145. Moreover, Supervisor Feiner confirmed that he did, in fact, direct Town staff, including the Town Attorney's office, and consultants to perform research and provide ideas for ways in which federal law would support the denial of the Fortress Bible Church application. See Trial Tr. at 2459:21-2461:5 (Feiner).

146. As promised in the e-mail correspondence, Supervisor Feiner directed the then-Town Attorney to send Sapan a copy of the RLUIPA statute. See Trial Tr. at 2460:23-2461:5 (Feiner).

147. Supervisor Feiner is a licensed attorney. At the time he engaged in the e-mail exchange with Sapan IN December 2001, Supervisor Feiner had read the RLUIPA federal statute. See Trial Tr. at 2462:13-18 (Feiner).

g. SEQRA Process Continues

i. DEIS Public Hearing

148. On December 12, 2001, and January 9, 2002, the Town held public hearings in connection with the DEIS. See Stipulated Fact No. 66.

149. The Westchester County Planning Board advised the Town that there were no county or intermunicipal planning issues of concern to the County Planning Board. See Jt. Exh. 62.

150. During the public comment period on the DEIS, by letter dated November 14, 2001, NYSDOT submitted comments and advised that the methodology used in the traffic impact study prepared by JCE, the Church's consultant, was acceptable. See Jt. Exh. 60.

ii. Town Terminates AKRF and Retains New Consultants

151. In January 2002, AKRF's services were terminated by the Town. See Trial Tr. at 979:19-25 (Russo).

152. In January 2002, Stellato was appointed as Commissioner of Planning. See Stipulated Fact No. 30.

153. In Spring 2002, the Town retained three new sets of consultants to analyze engineering, planning and traffic aspects of the Fortress Bible Church application. See Stipulated Fact No. 31. The Town retained Michael Maris Associates as its traffic consultant. See Stipulated Fact No. 32. The Town retained FPM Group to provide engineering and stormwater drainage comments. See id. The Town retained Turner as its planning consultant to provide advice on the SEQRA process and general planning comments. See id.

154. Deputy Town Attorney Insardi admitted that she did not attempt to explain to the applicant, nor any representative of the applicant, the rationale for hiring three sets of new consultants to review the Fortress Bible Church project at the FEIS stage. See Trial Tr. at 3007:19-3009:10 (Insardi).

155. Deputy Town Attorney Insardi was involved in hiring consultants for the Fortress Bible Church project. See Trial Tr. at 3006:11-14 (Insardi).She had previously worked with both Town Traffic Consultant Maris and the FPM Group. See Trial Tr. at 3001:17-18, 3006:19-22 (Insardi); Trial Tr. at 3253:20-3254:2 (Maris).

156. Deputy Town Attorney Insardi contacted Maris about performing work for the Town of Greenburgh. See Trial Tr. at 3254:3-7 (Maris).

157. In early 2002, Deputy Town Attorney Insardi approached FPM Group to ask if they would work with the Town of Greenburgh. See Trial Tr. at 2643:20-2644:3 (Phillips).

158. Town Consultant Phillips of FPM Group knew and had worked with Deputy Town Attorney Insardi before Insardi joined the Town Attorney staff. See Trial Tr. at 2644:9-14 (Phillips).

iii. The Church Modifies Project to Respond to Defendants' Comments

159. In March 2002, the Church's consultants met with, among others, Police Chief Kapica, Town Traffic Consultant Maris, Town Planning Commissioner Stellato, and Deputy Town Attorney Insardi, to review the Fortress Bible Church project and specifically to respond to concerns of Police Chief Kapica. See Stipulated Fact No. 33.

160. As a result of that meeting and in response to concerns raised by Police Chief Kapica, the plan for the project was revised to provide additional parking. See Stipulated Fact No. 34. The Church submitted this plan as Alternate G in the FEIS. See id.; see also Jt. Exh. 69(a).

161. At that March 2002 meeting, Police Chief Kapica indicated that his concerns would be satisfied with the addition of a traffic signal at the Fortress Bible Church driveway on Dobbs Ferry Road and additional parking. See Trial Tr. at 658:11-659:4 (Grealy); Trial Tr. at 134:8-135:17 (Schiff).

162. On April 5, 2002, the Church submitted to the Town its proposed FEIS, including Alternative G. See Stipulated Fact No. 53; Jt. Exh. 68; Jt. Exh. 69(a).Alternative G modified the DEIS Plan by adding (i) thirty-three additional parking spaces and (ii) a traffic light at the proposed driveway that would be coordinated with an existing traffic light at the Sprain Brook Parkway entrance ramp, while maintaining all off-site improvements previously proposed by the Church and conceptually approved by NYSDOT. See Jt. Exh. 69(b) (Alternative G Plan); Jt. Exh. 69(a).

163. The provision of one hundred and sixty parking spaces exceeded the Greenburgh Town Code minimum parking requirement.

164. The Church had already received conceptual approval for installation of a traffic signal at Dobbs Ferry Road from NYSDOT. See Stipulated Fact No. 61; see also Trial Tr. at 615:17-617:5 (Grealy).

h. Defendants' Implement the Directive of Finding a Way to Defeat the Project

165. By abandoning these normal practices and prolonging the SEQRA process at great expense to the Church, Defendants used the SEQQRA process to delay and frustrate the Fortress Bible Church application.

166. Supervisor Feiner directed Town Staff, including the Town Attorney, to "work on" ways in which the Town could deny the Church's application without adverse consequences under RLUIPA. See Trial Tr. at 2460:5-2461:5 (Feiner).

167. Maris was the first of the new consultants hired by the Town to work on the Fortress Bible Church project, and both he and Deputy Town Attorney Insardi attended a March 2002 meeting with Police Chief Kapica. See Stipulated Fact No. 33; Trial Tr. at 2849:21-2850:9 (Stellato); Trial Tr. at 3091:1-3 (Insardi).

168. The Town's new consultants were instructed not to speak directly with representatives from Fortress Bible Church, but instead to filter all comments through the Town Attorney's office. See Trial Tr. at 1070:23-1071:7 (Turner); Trial Tr. at 3098:9-3101:6 (Insardi).

i. Intentional Delays

169. FPM Group, one of the Town's own consultants anticipated that its work on the Fortress Bible Church application on behalf of the Town would last only approximately two months, until July 2002. See Pl. Exh. 101. However, the Town prolonged the FEIS process until December 24, 2003-after commencement of this litigation and one and a half years longer than their own consultant reasonably anticipated.

170. Upon submission of the FEIS, the Church again requested that the Town schedule a public hearing on the site plan. See Jt. Exh. 68.

171. Deputy Town Attorney Insardi advised the Church that, upon submission of the FEIS, it would be appropriate to convene a public hearing on the site plan given the late stage of the SEQRA and land use approval process. See Jt. Exh. 68; Trial Tr. at 3004:1-3005:10 (Insardi).

172. Yet, the Town Board never conducted a public hearing on the site plan. See Trial Tr. at 144:11-18, 314:19-25 (Schiff).

173. The Town initially did not provide the FPM Group with the full FEIS prepared by the Church, but rather, on or about April 12, 2002, selectively provided the drainage analysis from the DEIS. See Def. Exh. MMM.

174. The Town Attorney's office instructed Town Traffic Consultant Maris to await instructions before reviewing the traffic section of the FEIS forwarded to him by the Church's consultants. See Trial Tr. at 3094:23-3095:2 (Insardi); Trial Tr. at 3261:12-23, 3329:23-3330:1 (Maris).

175. By letter dated May 23, 2002, Plaintiffs requested: (i) the Town provide comments on the FEIS prepared by the Church; (ii) the Town refer the application to the Planning Board for a report and recommendation; and (iii) the Town hold a public hearing on the site plan. See Pl. Exh. 38.

176. On that same day, May 23, 2002, Town employees and consultants met- without Plaintiffs present-to, inter alia, "ascertain the Town's strategy on where the project was headed." See Jt. Exh. 76; Trial Tr. at 2703:18-2705:17 (Loyst). The Town consultants also were instructed to refrain from speaking directly to the Church's representatives and consultants and to refer their questions/comments to the Town. See id. It was decided that the Town should perform a "technical review" of the DEIS, even though the Town already had accepted it as complete. See Jt. Exh. 76; Trial Tr. at 2703:18-2706:13 (Loyst).

ii. Improper Review of Materials Previously Accepted by Town

177. Pursuant to SEQRA, the scope of the FEIS had been established during the scoping process on the DEIS in 2000. Nevertheless, in 2002, the Town and its new consultants began raising new issues and requesting new information, which had not been included in the scope, and were neither necessary nor appropriate for finalizing the FEIS. See Trial Tr. at 139:24-141:8; 168:6-169:20 (Schiff); Trial Tr. at 342:23-344:1 (Lachenauer).

178. The Town's new consultants, FPM Group, acknowledged that the DEIS stage was complete. See Pl. Exh. 106 at p. 2.

179. Town Consultant Phillips admitted that: (i) the DEIS for the Fortress Bible Church application had been accepted as complete by the Town prior to FPM Group being retained by the Town; (ii) in order for a DEIS to be accepted as complete, the DEIS must be submitted in compliance with requirements set forth in the SEQRA regulations; and (iii) acceptance of the DEIS by the Town Board meant that the DEIS had been accepted as being submitted ...


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