The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
Plaintiffs Mosdos Chofetz Chaim, Inc. ("Mosdos"), Yeshiva Chofetz Chaim, Inc. ("YCC"), Rabbi James Bernstein ("Bernstein"), Moshe Ambers ("Ambers"), Rabbi Naftoli Sofer ("Sofer"), Naftolid Tesher ("Tesher"), Beatrice Zaks, and Sima Zaks (collectively, "Plaintiffs") bring this action against Defendants the Village of Wesley Hills ("Wesley Hills"), the Mayor and the Board of Trustees of Wesley Hills, Robert H. Frankel, Edward B. McPherson, David A. Goldsmith, Robert I. Rhodes, Jay B. Rosenstein (together, the "Wesley Hills Defendants"), the Village of Pomona ("Pomona"), the Mayor and Board of Trustees of Pomona, Herbert I. Marshall, Nicholas L. Sanderson (together, the "Pomona Defendants"), the Village of Chestnut Ridge ("Chestnut Ridge"), the Mayor and Board of Trustees of Chestnut Ridge, Jerome Kobre, Howard L. Cohen (together, the "Chestnut Ridge Defendants"), the Village of Montebello ("Montebello"), the Mayor and Board of Trustees of Montebello, Kathryn Ellsworth a/k/a Kathryn Gorman, Jeffrey Oppenheim (together, the "Montebello Defendants"), and John Does 1-37 (collectively, "Defendants"). Plaintiffs allege claims under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 for violations of and conspiracy to violate their rights under the Free Exercise, Establishment, and Free Association Clauses of the First and Fourteenth Amendments, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as well as claims under the Fair Housing Act, 42 U.S.C. § 3604, et seq. ("FHA"), the New York State Constitution, Article I, §§ 3 and 11, and New York Civil Rights Law § 40-c.
On March 31, 2010, the Court granted Defendants' motions to dismiss
the initial Complaint, which had been filed on January 8, 2008,
without prejudice. See Mosdos Chofetz Chaim, Inc. v. Vill. Of Wesley
Hills, 701 F. Supp. 2d 568 (S.D.N.Y. 2010) ("Mosdos I").*fn1
On June 3, 2010, Plaintiffs filed an Amended Complaint.A
motion to dismiss has been filed on behalf of the Wesley Hills
Defendants, the Chestnut Ridge Defendants, and the Montebello
Defendants (the "non-Pomona Defendants"). (Dkt. No. 52.) Another
motion to dismiss was filed on behalf of the Pomona Defendants. (Dkt.
No. 55.) The Court assumes familiarity with Mosdos I and the facts set
forth therein, but discusses them to the extent they are relevant to
deciding the instant motions. For the reasons stated herein,
Defendants' motions to dismiss are granted in part and denied in
A. The Parties Plaintiffs are religious corporations and individuals affiliated with the Chofetz Chaim sect of the Orthodox Jewish community, all of whom allege an interest in the operation of Kiryas Radin, "a religious educational institution and center for religious activity and prayer," at a location in the Town of Ramapo ("Ramapo") known as the Nike Site. Defendants are four Villages (the "Villages" or "Village Defendants") located within Ramapo, as well as current and former officials of each of those Villages (the "Individual Defendants"). Plaintiffs have filed this action to challenge alleged discriminatory conduct by Defendants, which Plaintiffs argue violates their civil rights.
B. Mosdos I As previously noted, on March 31, 2010, the Court granted Defendants' motions to dismiss, without prejudice. In its Opinion, the Court addressed a number of issues that are relevant to the pending motions.
1. Standing The Court previously determined that Plaintiffs Mosdos and YCC had adequately pled injury-in-fact because they alleged that they suffered injury from being unable to operate Kiryas Radin, despite spending money and making efforts to complete construction on the Nike Site, and have also expended resources to litigate the state court Chestnut Ridge Action.*fn2 See Mosdos I, 701 F. Supp. 2d at 582. Plaintiffs Bernstein and Ambers also alleged an injury-in-fact because they plan to study and live at Kiryas Radin but are barred from doing so by Defendants' actions, and the Court found "there is a substantial probability that Bernstein and Ambers will be able to live and study at Kiryas Radin if they get the relief they seek." Id.
The Court concluded that Plaintiffs sufficiently alleged the causation and redressability elements of standing with respect to the pursuit of the Chestnut Ridge Action by the Village Defendants. Plaintiffs expended resources litigating the Chestnut Ridge Action, and the filing of that action (and the resulting TRO issued by the state court) prevented Plaintiffs from operating Kiryas Radin on the Nike Site. See id. at 584-85. However, Plaintiffs did not allege an adequate link between the Village Defendants' allegedly discriminatory zoning laws and Plaintiffs' claimed injuries. See id. at 585. The Nike Site is not in any of the Villages, and Plaintiffs did not allege that they either had a property interest within any of the Villages, had tried to build or live in the Villages, had been denied a variance of permit from any of the Villages, or planned to take action within the Villages that would subject them to the zoning laws in the near future. The laws also did not delay operation of Kiryas Radin, because the Nike Site is not subject to the zoning laws. Accordingly, despite Plaintiffs' allegations that the zoning laws discriminate against the Hasidic community in general, they did not allege that they personally were injured by the laws. See id. at 585-86.
2. Compulsory Counterclaims In Mosdos I, the Court also concluded that Plaintiffs Mosdos and YCC are barred from pursuing their claims against the Village Defendants because, under Federal Rule of Civil Procedure 13, those claims should have been filed as compulsory counterclaims in the Chestnut Ridge Action. See id. at 588. Plaintiffs Mosdos and YCC are named as defendants in the Chestnut Ridge Action and the counterclaims that Mosdos and YCC alleged in that action share the same factual background as the instant action. See id. at 589. The Court explained that Plaintiffs' allegation in the Complaint that the Chestnut Ridge Action was a pretext for illegal actions by the Village Defendants is logically intertwined with the validity of the Village Defendants' legal claims, which will be determined in the Chestnut Ridge Action. See id. at 590. Thus, Mosdos and YCC were required to raise their claims against the Village Defendants as compulsory counterclaims in the Chestnut Ridge Action, and those claims were dismissed. See id. Likewise, because the claims against the Individual Defendants sued in their official capacity are duplicative of the claims against the Village Defendants, the claims of Mosdos and YCC against the Individual Defendants in their official capacities also are barred as unpled compulsory counterclaims. See id. at 591. However, the Individual Defendants in their individual capacities are not opposing parties under Federal Rule of Civil Procedure 13(a) and, therefore, Mosdos and YCC are not barred from bringing their claims against the Individual Defendants in that capacity. See id. at 591-93. In addition, the Individual Plaintiffs, who were not parties to the Chestnut Ridge Action, are not barred by Rule 13 from bringing their claims against the Village Defendants or against the Individual Defendants, in either their official or individual capacities. See id. at 592 n.15.
3. First Amendment Right to Petition and the Noerr-Pennington Doctrine In addition, the Court examined whether Defendants' pursuit of the Chestnut Ridge Action was activity protected by the First Amendment and the Noerr-Pennington doctrine.*fn3 Although the Second Circuit has yet to address the application of the Noerr-Pennington analysis to claims alleging civil rights violations, the Court determined that the Noerr-Pennington framework could be applied in this context. District courts within the Second Circuit have not reached consensus on this issue; however, the majority of circuit courts have reached the same conclusion as this Court. See id. at 595-97. The Court explained that when government actors petition the courts in their representative capacity, they should be afforded some measure of protection under the Noerr-Pennington doctrine and the First Amendment, provided that they petition in a manner that does not violation other applicable constitutional provisions, such as the Equal Protection Clause of the 14th Amendment. See id. at 599-602. The Court declined to delineate the precise boundaries of this protection, but determined that the Chestnut Ridge Action is the type of petitioning by a municipality that is entitled to some protection, subject to the sham exception to the Noerr-Pennington doctrine. See id. at 602. The Court further concluded that the Chestnut Ridge Action cannot be considered sham litigation, because the state court judge's issuance of a preliminary injunction -- which requires finding a likelihood of success of the merits -- necessarily indicates that the litigation was not "objectively baseless," the first requirement of the sham exception to the Noerr-Pennington doctrine. Id. at 602-03.
However, the Court reiterated that the actions of municipalities in pursuing litigation must be consistent with the Constitution. See id. at 603. Government actors may not pursue even meritorious claims if they do so in a discriminatory fashion. See id. The Court noted that discrimination could be established if Plaintiffs demonstrate that the Village Defendants were improperly selective in litigating to protect their interests. See id. By way of analogy, the Court noted that a claim of selective petitioning in violation of the Equal Protection Clause is akin to a selective enforcement claim, where a plaintiff alleges that an otherwise valid law has been selectively enforced against him, but not against other similarly situated people, based on impermissible factors. See id. at 601. Thus, to plead a selective petitioning claim in the instant action, Plaintiffs must allege both: (1) that they were selectively treated compared to others similarly situated; and (2) that the selective treatment was motivated by an intention to discriminate based on impermissible considerations, such as religion. See id. at 603.
The Court concluded that although the second prong was properly pled in the Complaint, Plaintiffs had not alleged that they were treated differently than others similarly situated. Id. In the Complaint, Plaintiffs alleged that the Village Defendants had approved the development of other multi-family, high-density units in their own villages, "without any alarm over infrastructure or sewer capacity" (Compl. ¶ 56) -- the claimed concerns with the Kiryas Radin project -- and that other "units were approved by the Villages throughout Ramapo without any opposition," (id.). The Court found this bare allegation of differential treatment to be insufficient because Plaintiffs did not explicitly allege that these other developments were similarly situated to Plaintiffs' proposed development, nor allege facts suggesting that they were similarly situated. See Mosdos I, 701 F. Supp. 2d at 603-04. The Court specifically pointed out that the Complaint contained no allegations that these other developments were similar in size or scope to the proposed development, that they were approved during the same time frame, or that the Village Defendants allowed the developments to proceed without requiring SEQRA compliance. See id. at 604. The Court also noted that if Plaintiffs amended their pleading, they should clarify whether they are suing the Individual Defendants in their capacity as village officials or as private citizens because, as private citizens, the Individual Defendants would be entitled to complete immunity under the Noerr-Pennington doctrine. See id. at 604 n.22.
Accordingly, the Court concluded that Plaintiffs had not made out a claim that defeated Defendants' qualified immunity, under the Noerr-Pennington doctrine and the First Amendment, to prosecute the Chestnut Ridge Action and, therefore, Plaintiffs were barred from pursuing claims based on the filing of that action. See id. at 604. However, the Court granted Defendants' motions to dismiss without prejudice and allowed Plaintiffs leave to amend their Complaint to address this issue. See id.
C. The Amended Complaint Plaintiffs filed an Amended Complaint on June 3, 2010, containing a number of changes from the original Complaint.
1. Parties Sofer, Tesher, Beatrice Zaks, and Sima Zaks were added as Plaintiffs in the Amended Complaint. Plaintiffs allege that Sofer and Tesher wish to study at Kiryas Radin and that Beatrice Zaks and Sima Zaks wish to pray, study, and teach at Kiryas Radin, and that all four have been prevented from doing so by Defendants' actions. (Am. Compl. ¶¶ 12-15.) Based on these allegations, these four Plaintiffs have standing to pursue their claims to the same extent as Plaintiffs Bernstein and Ambers, who are in the same position as the newly added Plaintiffs, and previously were found to have standing.*fn4
In addition, David Goldsmith, Mayor of Wesley Hills, was added as a Defendant.*fn5
In the caption of the Amended Complaint, Plaintiffs indicate that each Individual Defendant is sued in his/her official and individual capacity, as was the case in the Complaint. In the Amended Complaint's discussion of each Individual Defendant, Plaintiffs further allege with respect to each individual that he or she "acted and participated in the underlying discrimination set forth in this complaint in both his [or her] individual and official capacity," but also specify that Plaintiffs are suing each Individual Defendant "in his [or her] individual capacity as a current and former [or just former] village official." (Am. Compl. ¶¶ 17-22, 24-25, 27-28, 30-31.)
2. Challenge to Zoning Regulations Plaintiffs now state that the action is "both a facial and as-applied change [sic] to the imposition and implementation of land use regulations." (Am. Compl. ¶ 1.) The initial Complaint challenged only the application of the law. Plaintiffs also allege that the regulations burden the religious practice of Orthodox communities in the Villages' jurisdiction (id. ¶ 2), and claim that Plaintiffs are members of Chofetz Chaim, a sect of Orthodox Jewry, and "have been affected by the Villages' discriminatory practices and actions," (id. ¶ 36). Plaintiffs allege that the Villages were discriminatorily established to control Hasidic immigration, land use, and religious exercise. (Id. ¶¶ 42-43.)
Plaintiffs' challenge to the laws as applied fails for the same reasons discussed in Mosdos I -- namely, that Plaintiffs lack standing to challenge the laws because they have not alleged adequately the causation and redressability elements of standing. See Mosdos I, 701 F. Supp. 2d at 585-86. The Nike Site is not subject to the zoning regulations, because it is within the jurisdiction of Ramapo and not any of the Village Defendants. Nor do Plaintiffs allege that they have attempted to live or build in any of the four Village Defendants, or that they would live in these Villages if not for the laws; therefore, they do not have standing to challenge the Villages' zoning regulations.
The Court also notes that Defendants did not address Plaintiffs' newly-added facial challenge in their motions to dismiss. The Court is skeptical as to the basis for any facial challenge, given that there has been no allegation that the regulations are discriminatory on their face. However, because Defendants did not raise this argument, the Court will not evaluate it at this time.
3. Claims Related to Chestnut Ridge Action In Mosdos I, the Court concluded that Plaintiffs had standing with respect to Defendants' pursuit of the Chestnut Ridge Action in state court. However, the Court concluded that to be actionable, Defendants must have selectively chosen to bring suit regarding the Nike Site while treating other similarly situated properties differently. In the Amended Complaint, Plaintiffs allege that the Village Defendants "joined forces to extend their bias and discrimination beyond their own borders and have selectively chosen to attack this religious land use project for religious Jewish education while ignoring many other land use projects of greater impact and size not built for the ultra-Orthodox Jewish community." (Am. Compl. ¶ 3.) Plaintiffs further allege that when Ramapo sought to revise its "Master Plan" to accommodate Hasidic growth in Ramapo, the Villages decided that no zoning expanding allowable new construction could take place "due to possible water shortages and increases in traffic." (Id. ¶ 46.) However, Plaintiffs allege that although the Village Defendants "opposed the Master Plan ostensibly due to density and lack of resources," they "approved or did not oppose the development of hundreds of multi-family, high-density units, including at least one operated by a religious non-Jewish entity, in their own . . . or in neighboring villages without raising any alarm over infrastructure or sewer capacity." (Id. ¶ 51.) In addition, according to Plaintiffs, none of the Village Defendants instituted a lawsuit against any other municipality and, although "the neighboring villages were notified as interested municipalities in these projects," there were "no letters of opposition or concern to these large projects" in the relevant planning files. (Id.)
The Amended Complaint specifically mentions eight projects that Plaintiffs claim the Defendants did not oppose. Plaintiffs allege that: (1) Airmont Gardens is in the Village of Airmont, borders Montebello, was built in 2003, and is a large project of multiple residential buildings with 140 units (Am. Compl. ¶ 52(a)); (2) Pulte Homes is in the Village of Airmont, borders Montebello, was built in 2002, and is a large project with seven large residential apartment buildings with 20 units per building (id. ¶ 52(b));(3) the Salvation Army is a non-Jewish religious entity that built a student center with 16 attached units for families in close proximity to Montebello in 1997 and built additional residential dwellings and housing for cadets in 2007, without opposition to the project by any Village Defendant (id. ¶ 52(c)); (4) Sycamore Crest is in the Village of Spring Valley, is in close proximity to Chestnut Ridge, and is a large project with a residential apartment building with multifamily units (id. ¶ 52(d)); (5) Harbors of Haverstraw is in the Village of Haverstraw, is close to Pomona, and is a large project with multiple residential apartment buildings approved for 400 units (id. ¶ 52(e)); (6) Avalon at Crystal Hill is in the Town of Haverstraw, is near Pomona, and is a large project of multiple residential apartment buildings with 174 units (id. ¶ 52(f)); (7) Misisceonga Park is in the Town of Haverstraw, is close to Pomona, and is a large project of multiple residential apartment buildings with 200 units (id. ¶ 52(g)); and (8)Montebello Commons is a large project with a "massive residential apartment building" with about 100 units that was approved and built in Montebello, which Montebello "reviewed . . . in the ordinary course, but . . . did not seek to subvert . . . in the same manner as Kiryas Radin," (id. ¶ 52(h)). Plaintiffs also allege that for each of these eight projects, none of the Village Defendants inquired as to the environmental review being conducted for the project or voiced any environmental concerns during the approval process. (Id. ¶ 52.)*fn6
In addition, Plaintiffs allege that as claimed in ¶ 52 of the Amended Complaint (the paragraph setting forth the eight comparators), Pomona discriminated against Hasidic Jews when it selectively chose to review and challenge land use developments which allow for the expansion of Hasidic communities -- specifically Mosdos's Kiryas Radin project -- and that the discrimination was in furtherance of Pomona's bias against a specific group of people based on their religious practice and faith. (Id. ¶ 88.) Plaintiffs further allege that Pomona "has not targeted other similarly situated land uses and developments which are being prosecuted [sic] by non-Hasidic/ultra-Orthodox, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion." (Id. ¶ 89.)
Plaintiffs also allege that as stated in ¶ 52 of the Amended Complaint, "Wesley Hills has not targeted other non-religious and religious non-Jewish similarly situated land uses and developments, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion." (Id. ¶ 102.) Plaintiffs further allege that the Mayor of Wesley Hills "was clear that he had no real concerns with the Mosdos project regarding water, sewer or traffic," and that the "underlying cause of the continuing action was the direct need to stop the yeshiva project due to anti-Hasidic/Orthodox bias by all the plaintiff villages in the state matter." (Id. ¶ 106.) Additionally, Plaintiffs allege that despite acknowledging that, based on the state court's determination, Wesley Hills is the only Village with standing to make a SEQRA challenge to Kiryas Radin, "Mayor David Goldsmith indicated that he must act in concert and coordination with Pomona, Chestnut Ridge and Montebello to further their collective agenda and therefore he was unable to discuss settlement with Mosdos/Y[CC]." (Id. ¶ 107.) Plaintiffs further allege that: (1) as stated in ¶ 52 of the Amended Complaint, "Chestnut Ridge has not targeted other non-Orthodox, similarly situated land uses and developments, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion"; (2) "Chestnut Ridge is over 4 miles away from the Kiryas Radin project and miles away from any proposed Adult Student Housing location"; and (3) Chestnut Ridge's "participation with the other Defendants is to collectively stop the growth of the Hasidic/ultra-Orthodox community." (Id. ¶¶ 110-11.)Lastly, Plaintiffs allege that as stated in ¶ 52, "Montebello has not targeted other non-Orthodox and non-Hasidic, similarly situated land uses and developments, even where such developments would affect the same purported governmental interests of water, sewer and traffic in a much greater fashion." (Id. ¶ 113.)
4. Individual Defendants Plaintiffs specify that the Defendants include "individuals whose biased edicts or acts were done selectively under the color of official policy." (Id. ¶ 1.) Plaintiffs also allege that the named Individual Defendants "were involved individually in the Villages' campaign against land use regulation that accommodates Plaintiffs and other members of the Hasidic Community." (Id. ¶ 63.) Plaintiffs further state that "the retention of counsel and the prosecution of litigation in the name of the Villages was a discretionary act of the individual defendants and done to further their and the Villages' participation in the effort to target the Hasidic and ultra religious community under the guise of proper municipal action." (Id. ¶ 74.)Plaintiffs do make additional allegations with respect to some ...