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Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona

United States Court of Appeals, Second Circuit

December 20, 2019

VILLAGE OF POMONA, NY, BOARD OF TRUSTEES OF THE VILLAGE OF POMONA, NY, NICHOLAS L. SANDERSON, as Mayor, IAN BANKS, as Trustee and in his official capacity, ALMA SANDERS-ROMAN, as Trustee and in her official capacity, RITA LOUIE, as Trustee and in her official capacity, BRETT YAGEL, as Trustee and in his official capacity, Defendants-Appellants-Cross-Appellees. RABBI GERGELY NEUMAN, RABBI KOLEL BELZ, of Monsey, RABBI ARYEH ROYDE, RABBI AKIVA POLLACK, Plaintiffs,

          Argued: April 18, 2019

         Congregation Rabbinical College of Tartikov, Inc. and future students and faculty sued the Village of Pomona and several village officials, challenging four amendments to the Village of Pomona's zoning law as violations of federal and New York law. Tartikov argued principally that Pomona adopted the challenged laws based on religious animus against Tartikov. The United States District Court for the Southern District of New York (Karas, J.) dismissed Tartikov's complaint in part and later resolved certain claims in the defendants' favor on a motion for summary judgment. The remaining claims proceeded to a bench trial, which concluded with a verdict for Tartikov on those claims. The defendants appeal from the final judgment, while Tartikov cross-appeals to challenge the earlier orders dismissing certain of its claims and granting summary judgment to the defendants on others.

         Tartikov lacks Article III standing to pursue some of its claims. We VACATE the judgment with respect to those claims and REMAND with instructions for dismissal. As to the remaining claims that went to trial, we REVERSE the judgment to the extent the claims invoke two of the challenged laws, but we AFFIRM insofar as the claims invoke the remaining two. Finally, we AFFIRM with respect to the dismissal and summary judgment orders challenged on cross-appeal.

          Thomas J. Donlon, Robinson & Cole LLP, Stamford, CT (John F. X. Peloso Jr., Robinson & Cole LLP, Stamford, CT; Marci A. Hamilton, Washington Crossing, PA, on the brief), for Defendants-Appellants-Cross-Appellees.

          Roman Storzer, Washington, DC (Joseph A. Churgin, Donna C. Sobel, Savad Churgin, Nanuet, NY; John G. Stepanovich, Stepanovich Law, PLC, Virginia Beach, VA, on the brief), for Plaintiffs-Appellees-Cross-Appellants.

          Before: Wesley and Chin, Circuit Judges; and Kaplan, District Judge. [*]


         This case poses difficult and in some respects subtle questions. Educational and religious institutions, as owners and users of real estate, are generally subject to local land use regulation. But they play unique roles in our society. Hence, our laws afford them some special treatment with respect to such regulation. Moreover, religious institutions enjoy the protection of the First and Fourteenth Amendments and federal legislation, each of which, in appropriate circumstances, trumps local land use law.

         Given the importance in our free society of education, religion, and the usually legitimate desires of communities to regulate the manner in which the land within their boundaries is developed and used, conflicts arise when these interests come into tension. In resolving such conflicts, courts must differentiate among opposition to proposed land uses based on (1) legitimate development concerns like traffic volume, density, and sufficiency of municipal infrastructure, (2) bias against the religious faith or practices of the developer or of likely residents of new development, whether overt or hidden by legitimate-seeming pretext, and (3) mixed motives. These appeals reflect one such conflict.

         In 2004, Congregation Rabbinical College of Tartikov, Inc. ("TRC") purchased about 100 acres of land in the Village of Pomona, New York ("Pomona" or the "Village"), a small suburban village of about 3, 200 people. As its name indicates, TRC hoped to use the property to build a school to educate rabbinical judges. But TRC submitted no concrete development proposals nor sought any zoning or construction approvals in the ensuing years.

         In January 2007, a local group published an article purporting to reveal that TRC's plan was to build nine large apartment buildings to house 1, 000 students and their families - a total of as many as 4, 500 people - as well as a school building. This provoked local opposition. Soon after, the Village board enacted two amendments to its land use laws limiting or outright prohibiting whatever development TRC ultimately might seek to build.

         TRC and future students and faculty (collectively, "Tartikov") filed this action against the Village and its board of trustees seeking to declare unconstitutional the two amendments enacted after its plans became known. In addition, it challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying for these plaintiffs New York State and local laws that otherwise would apply. The Village challenges the decision below. Its central contention is that the findings of religious animus were clearly erroneous. Tartikov cross appeals from a number of pretrial rulings that limited the scope of its claims.

         After careful consideration of the extensive record, we decline to overturn the district court's findings that religious animus motivated the two zoning amendments passed after the plaintiffs' wishes became known and thus affirm the injunction barring their enforcement. But we respectfully conclude that there was insufficient evidence to support such a finding as to either of the two earlier zoning amendments and therefore reverse that portion of the judgment. We conclude also that the injunctive relief went further than was appropriate and modify those aspects of the judgment as well. We affirm as to the cross-appeal.


         The governmental and legal context in which the amendments to the Pomona zoning law ordinance were enacted is important to a full understanding of this case. We therefore begin by sketching that framework.

         I. The Context

         A. Local Government in New York

         New York State is home to over 1, 600 local governments.[1] The entire state is divided among 62 counties, each of which has its own local government.[2]Each of the 57 counties outside New York City is divided into towns and in some instances one or more cities, each of which also has its own local government.[3]There are, in addition, hundreds of villages throughout the state, some coextensive with towns but most within larger towns. As is now a familiar motif, each has its own government.[4] Unlike counties, cities, and towns, New York's villages "exist at the discretion of [their] residents"; they "can be created or dissolved by local initiative."[5] According to New York's Department of State's Division of Local Government Services, one reason town residents might create a village is "a difference in development philosophies of citizens and town officials."[6]

         Village governments draw their authority to enact and enforce zoning regulations from numerous sources, including the Statute of Local Governments, [7]the Municipal Home Rule Law, [8] and the Village Law.[9] A village exercises that authority, as well as the authority to enact other legislation, through a board of trustees, [10] which typically consists of an elected mayor and four elected trustees.[11]The Village Law gives a board of trustees the authority to regulate various aspects of land use within its domain.[12] When a board of trustees regulates land use, it is obliged to follow a "comprehensive plan."[13] A comprehensive plan identifies the goals, policies, and instruments for the short and long term growth and development of the village.[14]

         B. Local Zoning Ordinances and Other Land Use Controls

         Village and other local governments in New York exercise their land use authority through land use controls, the most common type of which is a zoning ordinance.[15] Zoning typically entails dividing a municipality's entire territory into districts and imposing land use restrictions within them.[16] Zoning ordinances can achieve many goals related to community planning, among the most common of which are prescribing minimum lot and maximum building sizes that control the density of development and permitting or proscribing the use of land in each zoning district for specific purposes such as agricultural, commercial, or residential.[17]

         Numerous federal and state laws limit the exercise of land use control powers.[18] One important limitation is the New York State Environmental Quality Review Act ("SEQRA").[19] SEQRA requires state agencies, including municipalities, "to incorporate the consideration of environmental factors into the . . . planning, review[, ] and decision-making processes."[20] It requires that a municipality considering a significant land use control ordinarily must prepare or request an environmental impact statement ("EIS") early in the planning process.[21] An EIS is a document that weighs the "social, economic[, ] and environmental factors" of a municipality's proposed decision or regulation, which includes considering alternative actions and mitigating factors.[22] After completing an EIS, each agency involved in the planning process must issue a findings statement that provides a rationale for its decision in light of the EIS.[23]

         C. Municipal Regulation of Land Used for Religious and Educational Purposes

         Land use regulation becomes more complicated when affected property belongs to religious or educational institutions - entities that, as noted previously, enjoy certain legal rights unavailable to ordinary landowners. As TRC is a religious educational institution, the terrain here is particularly rugged.

         The New York Court of Appeals thoroughly surveyed this landscape in Cornell University v. Bagnardi.[24] Beginning with a history it deemed essential to understanding the respective positions of religious schools and municipal land use regulators, the court emphasized the "special treatment" that schools and churches often have enjoyed "with respect to residential zoning ordinances."[25] This "favored status," which has included "expan[sion] into neighborhoods where nonconforming uses would otherwise not have been allowed," was unobjectionable in the nation's early years.[26] But with growing populations and the advent of the automobile, citizens began viewing schools - particularly universities, which were the subject of the Bagnardi court's discussion - as disturbances, rather than benefits to the neighborhood.[27] "With this change in attitude, courts were thrust into the role of protecting [religious and] educational institutions from community hostility."[28]

         New York courts did this in several ways. On occasion, they struck down "[z]oning ordinances that imposed limitations on the construction of public schools" or that interfered with the First Amendment rights of religious schools.[29]On others, they "held that schools, public, parochial[, ] and private, by their very nature, singularly serve the public's welfare and morals."[30] Accordingly, the New York Court of Appeals has concluded that "the total exclusion of such institutions from a residential district serves no end that is reasonably related to the morals, health, welfare[, ] and safety of the community."[31] "[T]otal exclusion is beyond the scope of the localities' zoning authority."[32]

         This did not mean that schools and religious institutions were exempt from zoning rules - a result that would have "render[ed] municipalities powerless in the face of a religious or educational institution's proposed expansion, no matter how offensive, overpowering[, ] or unsafe to a residential neighborhood."[33] Bagnardi explained how local authorities should balance the competing interests at stake:

"The controlling consideration in reviewing the request of a school or church for permission to expand into a residential area must always be the over-all impact on the public's welfare. Although the special treatment afforded schools and churches stems from their presumed beneficial effect on the community, there are many instances in which a particular educational or religious use may actually detract from the public's health, safety, welfare[, ] or morals. In those instances, the institution may be properly denied. There is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects. The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services[, ] and the like.
"Thus, educational and religious uses which would unarguably be contrary to the public's health, safety[, ] or welfare need not be permitted at all. . . . Such uses, which are clearly not what the court had in mind when it stated that traffic and similar problems are outweighed by the benefits a church or school brings, are unquestionably within the municipality's police power to exclude altogether. Even religious and educational institutions must accommodate to factors directly relevant to public health, safety[, ] or welfare, inclusive of fire and similar emergency risks, and traffic conditions insofar as they involve public safety.
"Less extreme forms of expansion that are nonetheless obnoxious to the community's residents, of course, require a more balanced approach than total exclusion. In Matter of Westchester Reform Temple v. Brown, the court recognized that considerations which may wholly justify the exclusion of commercial structures from residential areas may be considered for the purpose of minimizing, insofar as practicable, the impairment of surrounding areas or the danger of traffic hazards. A special permit may be required and reasonable conditions directly related to the public's health, safety[, ] and welfare may be imposed to the same extent that they may be imposed on noneducational applicants. Thus, a zoning ordinance may properly provide that the granting of a special permit to churches or schools may be conditioned on the effect the use would have on traffic congestion, property values, municipal services, the general plan for development of the community, etc. The requirement of a special permit application, which entails disclosure of site plans, parking facilities, and other features of the institution's proposed use, is beneficial in that it affords zoning boards an opportunity to weigh the proposed use in relation to neighboring land uses and to cushion any adverse effects by the imposition of conditions designed to mitigate them. These conditions, if reasonably designed to counteract the deleterious effects on the public's welfare of a proposed religious or educational use should be upheld by the courts, provided they do not, by their cost, magnitude[, ] or volume, operate indirectly to exclude such uses altogether."[34]

         The foregoing, of course, was an explication principally of New York law, which is informed with respect to religious land use by constitutional principles applicable to religious institutions. But to be absolutely clear, the Supremacy Clause of the Constitution demands, as it always has done, that state law yield to the imperatives of more demanding federal law including the First and Fourteenth Amendments.

         II. Facts

         A. Pomona and Its Zoning Ordinance

         The Village of Pomona was incorporated in Rockland County, New York in 1967.[35] It is governed by a board of trustees, which consists of the mayor, deputy mayor, and three trustees.[36] At the times relevant here, the entire Village was designated as an R-40 residential zoning district.[37] Thus, the entire Village was zoned to permit only single-family residential development on lots of at least 40, 000 square feet.[38]

         B. The Subject Property and Pomona's Zoning Ordinance

         1. Camp Dora and Yeshiva Spring Valley

         The 100 acres at issue here are on the southwestern side of Pomona. For years it had been the site of a summer camp known as Camp Dora.[39] At some point prior to December 1999 - the record does not indicate when - an entity named Yeshiva Spring Valley ("YSV") acquired the parcel.[40] Initially, YSV continued operating a summer camp on the site, but its goal was to build a yeshiva[41] on the property.[42]

         a. December 1999 Informal Planning Board Meeting

         On December 15, 1999, a representative of YSV, Rabbi Fromowitz, met with the Village planning board, the members of which then were Mel Cool, Alan Lamer, Alma Roman, Joy Shulman, and Nik Winter.[43] Also present was Mark Healey, a representative of Frederick P. Clark Associates, Inc. ("FPC"), then the Village's planning consultant.[44]

         YSV did not present the planning board with any specific building plans or application. Rather, it made an informal presentation regarding the yeshiva it hoped to apply to build in the future.[45] Rabbi Fromowitz explained that YSV wished to build a primary school for children in kindergarten through the eighth grade and a preschool for younger children.[46] The primary school would be approximately 100, 000 square feet[47] and would accommodate roughly 800 students.[48] The preschool building would be approximately 30, 000 square feet[49] and include a large synagogue.[50]

         During the meeting, Roman asked if YSV planned to build dormitories at the schools. Rabbi Fromowitz answered that it did not. Roman repeated the question twice more, mentioning a rumor "floating around" that YSV did intend to build dormitories.[51] Rabbi Fromowitz repeated that YSV had no such intention. He explained that the development would be a primary school and that "[p]rimary school children should be living at home."[52]

         Planning board member Lamer asked the Rabbi if YSV had done traffic studies.[53] Rabbi Fromowitz replied that it had.[54] Roman then asked if there would be any other structures built on the property.[55] Rabbi Fromowitz replied that "we have no plans for further development. There's nothing on the table that we are planning at this moment. If there would be a future plan we would come before the Planning Board once again for additional, you know, development. But I can't tell you right now of any other development because there is nothing, that we're planning at this point."[56]

         Mark Healey, the FPC representative, then interjected the following:

"Mr. Chairman, if I could offer some comments to the Board. I took a look at the zoning for schools in the Village and they really stink, to put it straight. The[] only requirement is that they have to have five acres of land and the setbacks have to be twice what is ordinarily required.[57] So that leaves an open question of issues that several members of the Board brought up. What can happen in the future? It looks okay now, but look at the property, it's 100 acres and there's a lot of potential out there. So, I would recommend that perhaps the applicant going back and doing more detailed plans, and doing a traffic study and everything else for the Village to seriously consider looking at it[s] requirements for schools and address such issues as perhaps, more detailed or more tailored lot area requirements. It's common to have lot area based on the number of students. So you can have say 5 acres, and say you have to have another .1 acre per student. So you wouldn't restrict them from doing what they want to do but it would assure the Village that they're not going to go down the road and develop a lot more in the future. Especially considering the constrained nature of the site and also the constrained nature of the surrounding road ways, in terms of traffic."[58]

         In response to Healey's comments, the board chairman, Mel Cook, asked whether YSV would have the ability to build an additional school in the future or if the Village could "limit that."[59] Healey replied that the Village could not prohibit building schools but could "put reasonable standards on their development and operations."[60] He added that he thought the Village should consider changes to the Village code for schools "from a planning perspective, in terms of property constraints, traffic and what would be appropriate" for the Camp Dora property and others in the Village.[61]

         Following the meeting with Rabbi Fromowitz, FPC prepared several memoranda for Mayor Herbert Marshall and the Village board of trustees addressing the YSV proposal and recommending amendments to the Village zoning law.[62] FPC noted in a January 24, 2000 memorandum that "it quickly became apparent" from a review of "the existing standards for schools in the Village's Zoning Law" that "the current standards for schools . . . are rather scant and would not adequately control the total/future development of a school property."[63] The memorandum continued:

"For example, based on the 10 percent maximum permitted building coverage requirement the subject property[, i.e., YSV property, formerly Camp Dora, ] could theoretically be developed with over 800, 000 square feet of floor space. While this amount of development is highly unlikely due to the development constraints presented by the steep slopes and wetlands on the property, it does point out the inadequacy of the current standards."[64]

         FPC recommended, among other things, making schools subject to special permit approval by the board of trustees, [65] revising lot area requirements, implementing limits aimed at controlling development intensity, and changing the definition of "school" to include preschools.[66]

         b. December 2000 Board of Trustees Meeting

         Eleven months later, Pomona trustees Ian Banks and Nick Sanderson, Deputy Mayor Al Appel, and Mayor Herbert Marshall addressed these matters.[67] On December 18, 2000, they considered whether the definition of "school" in any new law should include both public and private schools, rather than private schools alone, in light of their understanding that state law already regulated public schools.[68] They discussed also the recommendation to change schools from "permitted uses" "to uses subject to special permit approval."[69] The group indicated that adopting school-related changes to the Village code was a priority that it hoped to accomplish within two months. Mayor Marshall stated also that the draft changes then before them were "a starting point" that they "want[ed] to work on" because "[t]his thing's going to come in. They're going to come in and we're going to be caught with our pants down if we don't move. That's why I want to make sure that we're moving ahead."[70] At the time of this meeting, and when the changes discussed were enacted into law, there were no schools in the Village.[71] The only prospective school use was the YSV plan.

         c. Local Law No. 1 of 2001

         On January 22, 2001, the board of trustees adopted Local Law No. 1 of 2001 (the "2001 Law").[72] It defined "educational institutions" as kindergartens, primary, and secondary schools that were operated and licensed under New York law.[73] It required also that schools obtain special permits from the board of trustees. In addition, it changed the minimum lot size from 10 gross acres to 10 net acres plus an additional .05 net acres per student.[74]

         d. June 2001 Planning Board Meeting

         In June 2001, YSV returned to the planning board with another informal presentation. This time, YSV described an additional proposed structure - an educational center for adults.[75] The Village attorney questioned whether the educational center would qualify as an "educational institution" under the new 2001 Law.[76] The planning board and the YSV representative discussed also issues related to wetlands, slopes, and road access.[77] The YSV representative stated that YSV would address these issues with the Village before submitting a formal application.[78]

         e. The YSV Subdivision

         Under Pomona's subdivision regulations, subdivision of a parcel into two or more lots requires the planning board's approval before the applicant seeks approval for a specific development plan on a subdivided lot.[79] While its informal approach concerning its yeshiva project was underway, YSV made a separate presentation during an August 2001 hearing concerning a proposed subdivision of the 100 acre property into 26 lots - 25 for single-family homes, and one large lot, not a topic of the August 2001 hearing, for the yeshiva.[80]

         A number of Pomona residents attended the planning board hearing and commented on the YSV proposal. Two expressed anxiety over the Village's ability to control the large lot. One asked whether that lot later could be annexed "to any of the other religious areas in the county" and thus prevent the Village from exercising regulatory control over the property.[81] The other asked whether Pomona had laws stricter than those of the Town of Ramapo that would allow the Village to determine whether and how the Camp Dora property could be developed, or whether there were no such laws and that the school essentially was "a done deal."[82]

         2. TRC Buys the Property and the Village Adopts Local Law No. 5 of 2004

         On August 31, 2004, YSV sold the property to TRC for approximately $13 million.[83] The parties stipulated below that the Village government did not become aware of this transaction until November 2004.[84] In the interim, however, the board of trustees considered another amendment to the zoning ordinance.

         On September 7, 2004, Village Attorney Doris Ulman made the following recommendations to the board of trustees: (1) changing the definition of "educational institution" to allow dormitories as a permitted accessory use, (2) eliminating the requirement of a specific acreage per student, (3) removing restrictions related to the location of schools on certain roads, and (4) limiting dormitories to one such building per lot.[85] The first recommendation would have brought Pomona into compliance with state law - specifically, Bagnardi - requiring that municipal zoning codes allow dormitories as an educational use of property.[86]

         On September 27, 2004, the board adopted these recommendations by enactment of Local Law No. 5 of 2004 (the "2004 Law").[87] Bound as we are by the parties' stipulation, we, like the court below, necessarily accept that it did so in ignorance of TRC's purchase of the property.

         The 2004 Law liberalized certain provisions of Village law related to educational institutions - including provisions of the 2001 Law. It expanded the definition of "educational institution" to include college, graduate, and postgraduate schools in addition to kindergarten, primary, and secondary schools.[88] It recognized also accreditation of schools "by the New York State Education Department or [a] similar recognized accrediting agency."[89] Additionally, the 2004 Law defined a "dormitory" as:

"A building that is operated by a school located on the same lot and which contains private or semi-private rooms which open to a common hallway, which rooms are sleeping quarters for administrative staff, faculty[, ] or students. Communal dining, cooking, laundry, lounge[, ] and recreation facilities may be provided. Dormitory rooms shall not contain separate cooking, dining[, ] or housekeeping facilities except that one dwelling unit with complete housekeeping facilities may be provided for use of a Superintendent or supervisory staff for every fifty dormitory rooms. Not more than one communal dining room shall be provided in any building used for dormitory purposes. Single family, two-family[, ] and/or multi-family dwelling units other than as described above shall not be considered to be dormitories or part of dormitories."[90]

         According to Ulman, who drafted the law, this definition was based on laws in Chestnut Ridge and Ramapo.[91]

         Significantly, none of the changes effected by the 2004 Law would have had any effect on the plans of YSV which, as far as the Board of Trustees knew, still owned the property.

         3. The Village's Opposition to the Town of Ramapo's Zoning Changes

         Until now, we have focused on events relating to the old Camp Dora that culminated with TRC's acquisition of the property and the Village's amendments to its zoning law. But there were related events going on during part of the same time period that involved the Town of Ramapo's zoning ordinance. As these events bore also on the district court's findings, we turn to them now.

         Between 2002 and 2004, the Town of Ramapo, which governs areas adjacent to Pomona, considered and passed a number of laws regulating or relevant to land use.

         In September 2002, Ramapo came out with a draft comprehensive plan for development. The draft plan proposed, among other things, to "down zone" a 200-acre property called the Patrick Farm Property from 2-acre residential zoning, or RR-80, to R-40 that would allow for "Planned Residential Development."[92] The Patrick Farm Property is located on the southwest corner of Routes 202 and 306 - across the road from the TRC property.

         Rumors circulated that 1, 500 to 2, 000 units of multi-family housing would be built on the Patrick Farm Property. To calm the rumors, the town supervisor, [93] Christopher St. Lawrence, issued a statement to clarify that the draft plan would allow only 220 residential units to be built there.[94] But some of the neighboring villages, including Pomona, were not reassured and sought to create a new village where the Patrick Farm Property was located in order to remove it from Ramapo's jurisdiction and thus prevent the proposed down zoning.[95] Mayor Marshall was a proponent of this idea and vocal opponent of the draft comprehensive plan.[96] He emphasized that "[z]ero population growth should be a major [objective of Ramapo's comprehensive plan]."[97] Notwithstanding such opposition, the comprehensive plan was adopted on January 28, 2004.[98] The new village supported by Marshall did not come to pass.

         In May 2004, the Village of Pomona and five other villages sued Ramapo to set aside its comprehensive plan.[99] Their petition stated that:

"Beginning in the 1990[s], the Town has attracted a burgeoning Hassidic community, which has for the most part settled around the central hub in Monsey and areas to the east of Monsey.
"This has caused development and political pressures in the Town to increase its housing stock and infrastructure.
"The essence of the Comprehensive Plan and zoning proposals is to significantly increase the housing densities and infrastructure along the bordering areas of the Town to accommodate the existing and future population increases in this area.
"It is not a rational development plan, and certainly did not take into consideration the impacts such development would have on the infrastructure and character of the Town's bordering Villages."[100]

         The action sought to set aside the plan on the ground that it had been adopted in violation of SEQRA.

         Shortly after the petition was filed, Ramapo adopted Local Law No. 9-2004, which "permits married adult student multi-family high density housing in most single-family residential zones throughout the unincorporated portion of the Town of Ramapo" if that housing is an accessory use to a postsecondary educational institution.[101] Pomona and other villages again sued Ramapo on the grounds, among others, that the law violated SEQRA and the Establishment Clause of the First Amendment.[102] And Mayor Marshall separately criticized the Ramapo town board for "pandering to the special interest groups able to deliver the critically important block vote [that] has become so essential to those seeking office in Ramapo."[103]

         4. TRC's Plans to Build a Rabbinical College

         TRC was formed in August 2004 as a religious corporation.[104] Its stated purpose was, among other things, to "establish, maintain[, ] and conduct a school for the [study] of the holy Torah and to maintain classes for the teachings of the customs, traditions[, ] and mode of worship of the Jewish Orthodox faith."[105] It intended to build and operate a rabbinical college in Rockland County to train a new generation of rabbinical judges[106] on the property it purchased from YSV in August 2004.[107]

         According to Tartikov, TRC would be organized as a Torah community, [108] a community designed to isolate students from distractions and surround them only with others engaged in the same study.[109] Students would follow its planned program of study for approximately fifteen years before becoming rabbinical judges.[110] They would study from 6 a.m. until 10 p.m[111] and live on campus with their spouses and children.[112] On-campus housing would allow them to meet their religious obligations to their families.[113] Due to the nature of its program, TRC could not be accredited by the New York State Education Department or the Association for Advanced Rabbinical and Talmudic Schools, the only accrediting agencies relevant to TRC's program of study.[114]

         There is evidence that Pomona's board of trustees learned a bit about TRC's plans as early as November 2004, when it became aware that TRC had purchased the property. Most obviously, TRC's name, which includes the phrase "Rabbinical College," is not subtle about the purpose of TRC. Further, from November 2004 until January 2007, the Village approved TRC's tax-exempt status twice, [115] and the board of trustees discussed or planned to discuss TRC in nonpublic meetings on ten separate occasions.[116] There is evidence also that there were "unsubstantiated rumors"[117] that TRC planned to build a rabbinical college on the property.[118]

         These facts notwithstanding, there is no evidence that the board knew any details about the planned rabbinical college before January 2007. In particular, nothing in the record suggests that the board knew about the nature, length, or size of the contemplated rabbinical college program, its anticipated on campus housing, the number of people who would reside on the site, or the duration of the planned course of study.

         5. Ulman Drafts the 2007 Laws

         It was in this context that Ulman in late 2006 drafted what would become Local Law No. 1 of 2007 (the "2007 Dormitory Law") and Local Law No. 5 of 2007 (the "2007 Wetlands Law") - the third and fourth challenged laws.[119]

         The draft 2007 Dormitory Law would have (1) changed the acreage requirement for educational institutions to a net of 10 acres without the prior requirement of .05 additional net acres per student, (2) removed certain slopes from the net lot area calculation, (3) prohibited dormitories from occupying more than 20 percent of the total square footage of all the buildings on a lot, and (4) set the maximum height of a dormitory at 25 feet.[120]

         Among other things, the draft 2007 Wetlands Law would have prohibited "[e]recting any building or structure of any kind," including roads and driveways, within 100 feet of the boundary of any wetland without a permit issued by the board of trustees or planning board.[121] A person could apply for a permit only if the prohibitions in the law resulted in the "deprivation of [all] the reasonable use of a property so as to constitute a de facto taking of such property."[122] The 100-foot buffer, however, would not apply to "lots that are improved with single family residences."[123] The permit and permit-approval procedures prescribed by the 2007 Wetlands Law are different from the special permit requirement and permit process for educational uses under the 2001 Law.

         6. December 18, 2006 Public Hearing re 2007 Laws

         The board of trustees held a public hearing on what became the 2007 Dormitory Law on December 18, 2006. Paul Savad, the attorney for TRC, asked if the proposed law was being considered due to his client's intended use of its property and what the law would accomplish for the Village.[124] Marshall responded that the intent was to "refine the existing law."[125] To give interested parties more time to review the proposed law, the board continued the hearing to the next board meeting on January 22, 2007.[126] It set the extension hearing on the draft 2007 Wetlands Law for the same date.[127] Before concluding matters on December 18, however, the board held a closed executive session to discuss "matters of litigation."[128] There is no record of the board's discussion during that session, though the agenda for the meeting indicates that the board planned to discuss the TRC property.[129]

         7. Details of TRC's Plans Emerge

         On January 9, 2007, a political action group called Preserve Ramapo published an article detailing plans for the TRC construction.[130] Michael Castellucio circulated the article to a Preserve Ramapo email list along with the following message:

"This is not our usual update letter. We have posted an important story that you will not find in other media including the Journal or Channel 12. Plans are under way to build a 'religious college' in Pomona at the end of Route 306 where it meets Route 202. On the 100 acres on the right side of the road a developer plans to put up an apartment complex of 4 to 6-story buildings that will house 4, 500 adult students and their families. This campus will have 9 large apartment buildings and a single, much smaller 3-story building that is the sole school building. The formula used is the 90% apartments 10% school of [Town of Ramapo Supervisor Christopher] St. Lawrence's Adult Student Housing Law. . . .
"Please forward this email, or send a link to the story to your neighbors and friends. Residents need to know that the Adult Student Housing complex on the old Nike site (Grandview Ave) was just the beginning of a massive urbanization effort whose path was cleared by Supervisor St. Lawrence and his Board."[131]

         The article itself stated that TRC planned to build housing for 1, 000 students - together with their families totaling 4, 500 residents.[132] The plan involved parking for 34 vehicles at the school building and 1, 036 vehicles at the residence buildings.[133] The article provided also the following background on the adult-student-housing law:

"in [the Town of] Ramapo[, the Religious Land Use and Institutionalized Persons Act (RLUIPA)] . . . was used by our town board as the legal justification for its new Adult Student Housing Law (ASH). Michael Klein, our town attorney, informed the town board that under RLUIPA it could not prevent religious institutions from creating 'Adult Student Housing' connected to schools providing 'post-secondary education.'
"Rather than test the fairness and constitutionality of the RLUIPA law in court, Supervisor St. Lawrence and his Board created a number of ASH zones in Ramapo including the project on Grandview Ave. on the old Nike site and numerous others. . . .
"By doing so, St. Lawrence and the Board have opened the floodgates to urbanization with high-density, multi-story apartment complexes masquerading as school campuses.
"The only way out of this march over the cliff is for voters to clean house this fall in the Ramapo elections, just as they did last fall in the state and national elections."[134]

         On January 12, 2007, The Journal News, a local newspaper, published an article entitled "Pomona to get rabbinical college plan."[135] It included an overview of the scale of the project similar to the Preserve Ramapo article. In addition, it quoted Savad as saying that the project was not a "dormitory city" but a rabbinical college "for Orthodox Jews who desperately needed and are mandated by Jewish law to go to the Jewish courts."[136]

         8. January 22, 2007 Public Hearing on the 2007 Dormitory Law

         On January 22, 2007, the board continued the public hearing on the draft 2007 Dormitory Law. Villagers voiced their opposition to the size and scale of the rabbinical college as had been reported by Preserve Ramapo and The Journal News despite repeated statements from Marshall that the exclusive purpose of the hearing was to discuss changes to the law generally rather than to discuss any specific property or project.[137] Nevertheless, some villagers noted that an additional 4, 500 people added to the Village's population of 3, 200 residents would "entirely change the character" and "the politics of the [V]illage."[138] A volunteer firefighter noted that there was no equipment to "handle six story buildings."[139] One individual mentioned the pressure that the college would put on town infrastructure.[140] A number stressed that the rural character of the community was a feature of Pomona they wished to preserve.[141] And another described the adult student housing in Ramapo on Grandview Avenue as a "monstrosity."[142]

         Some villagers voiced their opposition to the people who potentially would reside on the property. One said that "there is a group who wants to take over this village" and that he did not want to be

"responsible for paying the expenses of somebody else's lifestyle, whether you cloak it in religion, you cloak it in anything you want to say, it just seems unfair that the burden should be placed on the people who have lived in the village by other people who want to come in and change the whole nature of the village."[143]

         Another stated that "it's really funny how we're talking about law, when you have a group that breaks every law there is."[144]

         Two potential changes to the draft 2007 Dormitory Law - permission to construct dormitories with two communal dining rooms and a height limit of 35 rather than 25 feet on dormitories - were discussed also. The change from 25 to 35 feet would have brought the height limit in line with the limit on all other buildings in the Village. One villager noted, however, that many single-family homes and other buildings in the Village had pitched, rather than flat roofs, as one would expect a dormitory to have.[145] Applying a different height limit to dormitories therefore would produce little or no inconsistency in the law.[146] Another suggested that the 35-foot limit should be measured from the existing rather than the proposed grade of a property.[147]

         At a certain point in the meeting, an individual stated that "it would be nice to hear [the board] saying, hey, I know how you all feel."[148] He continued to state that "in America, we have the sense of community. That's our face. We're going to be another Kiryas Joel.[149] That's why we are emotional."[150] The next three individuals to speak all commented on the emotion and frustration that villagers felt as a result of the reports detailing TRC's plans. Specifically, one individual said:

"The frustration that we have is that you knew of the press that had come out, whether it be true or not. You knew that it was out there, and you know we were very, very upset. I think what would have helped us is if at the beginning of this meeting, you had said, this is what is going on, we know that you've read this, we are here to protect your interests, and the amendments to this law, this project, this alleged project, with the alleged attorney who is allegedly sitting here, produces it, that these amendments will defend us. If you had said that in the beginning, I don't think as many people would be as upset as they are, because we don't know where you stand."[151]

         Mayor Marshall replied:

"We sitting at this table have limitations that are placed on us as to what we can say, and what we can't say, because our attorney tells us what we can say and what we can't say. I can't say what I feel - I can't - if I agree with you, I don't agree with you, I don't have that luxury of being able to say that here. All that I can say is that every member of this board works very, very hard to do what is best for this community. You have your issues. Don't assume because no one has gotten up and said, wow, I agree with you, oh boy; don't assume that because we didn't do that that we don't agree. We may or we may not, but please give us the benefit of the doubt. We have all been doing this - we work very hard at what we do. We try and do what is best for the community, but it's our home.
"There are limitations under the law that restrict what we can say and when we can say it."[152]

         Following the public hearing, the board briefly discussed the proposed changes to the draft law. Trustee Lamer agreed with the point that dormitories were more likely to have flat roofs and a 25-foot limit expressed the view therefore would be appropriate.[153] Trustee Banks said he thought that the limit should be consistent with the limit on accessory uses, which was then 20 feet.[154] Deputy Mayor Sanderson concluded that the limit should be kept at 25 feet as in the draft law proposed on December 18, 2006.[155] He stated also that the board should keep the provision in the December 18 draft that provided for one, not two, dining rooms.[156] The board then adopted the 2007 Dormitory Law in the form originally prepared by Ulman in 2006.[157]

         9. January 22, 2007 Public Hearing on the Wetlands Law

         Following a discussion of two items not subject to public hearing nor transcribed, the board held a public hearing on the proposed 2007 Wetlands Law on January 22.[158] Savad objected to the law generally and on grounds specific to the TRC property. He stated that the proposition that the proposed wetlands law was designed to "fill a void created by federal law is incorrect and false . . . because the vast majority of wetlands are under the present, current jurisdiction of the Army Corps of Engineers and the [New York State Department of Environmental Conservation, or] DEC."[159] Savad argued that the proposed law generally would be "arbitrary and capricious," "subjective, "[160] "insidious," and "not constitutional," at least insofar as it would add an additional 10 acres of the property to the 37 acres already subject to DEC and federal wetlands jurisdiction, thus targeting and preventing certain uses.[161]

         A villager who spoke immediately afterward argued that the draft 2007 Wetlands Law indeed was needed to fill gaps in federal and state wetlands regulations and provided an example of a developer who had damaged wetlands on a property adjacent to Pomona. The developer had gone unpunished and the damage unmitigated due to the limited jurisdiction, failings, and resource constraints of the federal and state authorities.[162] Another villager expressed concern that his property would be affected negatively by the proposed law, which he believed was "made specifically for, let's just say, certain types of institutions which I think is the reason for most of this."[163] He suggested that large parcels should be treated differently than single-family homes.[164]

         10. February 12, 2007 Workshop Meeting

         The public hearing on the draft 2007 Wetlands Law was continued to February 26, 2007.[165] On February 12, 2007, however, the board held a workshop to discuss possible changes to the draft law. Each member of the board (with the possible exception of Roman) had known for at least six years that there were wetlands on the TRC property.[166]

         At the workshop, Ulman ran through a list of recommendations from the county.[167] Subsequently, the board discussed the issue of what would happen under the proposed law if a property owner wanted to extend an existing deck that was within the buffer zone. Ulman noted that the building inspector in that event would need to go to the property to determine if there were any wetlands that would trigger the permit procedure in the law. Sanderson explained to Ulman that the process would not work that way:

"[The building inspector] doesn't have the time or the money, budget wise, to go out and look at the site for somebody that wants to rebuild their deck with three extra square feet in it. . . .
"He has to get a building permit to do it and the guy will look at the site plan or the existing - the existing file and he'll say, have you got a proper - does the deck meet all of our codes? Yes. You got a building permit."[168]

         Banks explained that the issue was a "problem of identifying and mapping the existing wetlands or small wetlands all over the village."[169]

         Marshall noted that the law accomplished such mapping only for new developments.[170] After further back and forth, the board decided that it would address at the next public hearing the issue of whether to apply the law to "new additions and structures on existing developed property."[171]

         11. Village Elections

         The public hearing scheduled for February 26, 2007 was adjourned until March 26, 2007.[172] But on March 20, the Village held elections for the board of trustees. Nick Sanderson, Brett Yagel, and Rita Louie ran as a slate.[173] They campaigned on a promise to stand up to the threat posed by TRC's "huge development that will include housing for thousands of adult students and their families" that would "have real environmental and safety problems."[174] They promised to fight TRC's anticipated use of RLUIPA. They called RLUIPA "fundamentally unfair" and its deployment "a hammer against our village."[175] And they won: Sanderson became mayor, and Yagel and Louie each became a trustee.[176]At the time they took up consideration of the draft 2007 Wetlands Law, at least Sanderson[177] and Yagel[178] were aware of the presence of some wetlands on the TRC property.

         12. The Village Adopts the 2007 Wetlands Law

         The Village adopted the 2007 Wetlands Law on April 23, 2007.[179] It exempted existing single-family homes.[180]

         III. Procedural History

         TRC never applied for a permit to build a rabbinical college on its property. But Tartikov filed this action on July 10, 2007[181] challenging the four Pomona laws described above. It argued that the laws, facially and as applied, violated (1) the First and Fourteenth Amendments and their New York constitutional counterparts, (2) the substantial burden, nondiscrimination, equal terms, and exclusions and limits provisions of RLUIPA, (3) the Fair Housing Act ("FHA"), and (4) New York statutory and common law.[182]

         Pomona moved to dismiss on the grounds that Tartikov lacked standing, its claims were not ripe, and it failed to state a claim for relief.[183] The district court granted the motion with respect to the as-applied challenges, concluding that they were not ripe because TRC had not presented formally its actual plans for the proposed rabbinical college nor made any application for a special use permit, use variance, zoning amendment, or zone change.[184] The court concluded also that Tartikov's claims under New York Civil Rights Law Section 40 were unripe.[185] It denied the motion in all other respects relevant here.[186]

         Tartikov moved, and Pomona cross-moved, for summary judgment. The district court granted summary judgment in favor of Pomona dismissing the free speech claims.[187] It otherwise denied the motions in all relevant respects.

         After a ten-day bench trial, the district court ruled in favor of Tartikov on the majority of its claims.[188] Beginning with the Fourteenth Amendment claims, the court found that the Village enacted each of the four challenged laws with a discriminatory purpose against Tartikov based on its religious character and a desire to prevent the growth of a Hasidic community in Pomona.[189] Among other evidence, the court focused on the timing of the laws, the Village's litigation opposing the Town of Ramapo's comprehensive plan, the comments of villagers and board members during the 2007 hearings, and several statements from Village officials it regarded as indicating their prejudice against Tartikov.[190] The court found also that the zoning law amendments had a discriminatory effect because they prevented Tartikov from constructing the proposed rabbinical college.[191] Thus determining that the laws were subject to strict scrutiny, the court held that the Village lacked a compelling state interest in enacting them and, in any case, the laws were not narrowly tailored to serve any such interests.[192] Based on these findings, the court held also that the Village enacted the laws to discriminate against Tartikov's sincerely held religious beliefs and its associational rights.[193]

         Treating the RLUIPA nondiscrimination claims as overlapping with the equal protection claims, the court found for Tartikov on these claims, as well.[194] It found for Tartikov also on the claims under RLUIPA that the zoning law amendments substantially burdened Tartikov's religious exercise. The court held that Tartikov demonstrated that its desire to build college facilities and multi-family housing was motivated by its religious character, and that the zoning law amendments would burden its planned construction substantially.[195] However, the court found for Pomona on the RLUIPA exclusions and limits and equal terms claims. For the former, it found that while the amendments would exclude Tartikov's proposed religious use of its land, they would not, as an exclusions and limits claim requires, totally exclude or unreasonably limit all religious assemblies, institutions, or structures within the Village.[196] As to the equal terms claims, the court found that the zoning law amendments did not, as they must for the claim to succeed, treat religious institutions differently than nonreligious institutions.[197]

         The court held further that Pomona violated the FHA's prohibition against discriminatory housing policies and New York's constitutional right to freedom of worship largely in the same respects that it violated the U.S. Constitution and RLUIPA.[198] The court found for Pomona, however, on the New York common law claims that the Village improperly had excluded multifamily housing.[199]

         The district court entered judgment and a mandatory injunction on March 1, 2018. Among other things, the court: (1) declared the four laws facially invalid under the First and Fourteenth Amendments, (2) enjoined Pomona from applying any of the provisions in those laws to the TRC property, (3) ordered Pomona to "process any and all applications" filed by Tartikov without reference to the provisions in the four laws and without "undue delay or religious discrimination," (4) directed Pomona to consider any proposed Tartikov nonaccredited rabbinical college as a permitted use rather than one subject to any special permit requirement, and any proposed Tartikov rabbinical college with student-family-housing as a permitted use in the R-40 zoning district (one acre, single-family residential), and (5) prohibited Pomona from enacting in the future any provisions similar to those in the four challenged laws.[200]

         Pomona appealed. Tartikov cross-appealed, asserting that the district court erred in dismissing the as-applied challenges and in ruling for Pomona on the RLUIPA equal terms and exclusions claims.


         I. Standing

         A federal court's authority to adjudicate depends on whether the plaintiff has standing to pursue its claims.[201] The Supreme Court has construed Article III to mean that a plaintiff must "have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."[202] An injury in fact sufficient to confer standing is "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical."[203] "[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought."[204] Where an action involves multiple plaintiffs, Article III is satisfied so long as at least one plaintiff - and not necessarily the same one - has standing with respect to each claim.[205]

         Tartikov's claims fall into two distinct groups, each of which asserts a different alleged injury.

         Tartikov's equal protection claims under the federal and New York constitutions and its nondiscrimination and equal terms claims under RLUIPA all are based on the alleged invasion of Tartikov's right to be free from state discrimination or unequal treatment under the law on the basis of religion. Its First Amendment free exercise, free speech, and free association claims under the federal and New York constitutions, RLUIPA substantial burden and exclusion and limits claims, FHA claims, and common law claims related to the Berenson doctrine[206] all rest on alleged infringement of the free exercise of its religion by regulation of the use of its property. Whether Tartikov has standing to pursue each group of claims turns on whether the alleged injury is an injury in fact for Article III purposes.[207]

         The first group of claims is that the Village adopted the four challenged laws at least in part for the purpose of discriminating against Tartikov on the basis of religion and that those laws stigmatized the plaintiffs. "[S]tigmatizing members of [a] disfavored group as innately inferior and therefore as less worthy participants in the political community" - i.e., discrimination - is an actual and concrete injury sufficient to confer standing.[208] The "'right invoked is that of equal treatment,' [and] the appropriate remedy is a mandate of equal treatment."[209] Tartikov thus has standing to pursue equal protection claims under the Fourteenth Amendment of the federal and New York constitutions as well as nondiscrimination and equal terms claims under RLUIPA.

         But Tartikov's second group of claims is different. It alleges that the four challenged laws prevent it from building and operating a rabbinical college on the property and thus interfere with its religious freedom. Tartikov, however, never submitted a formal proposal for the building project, applied for a permit, or engaged in any other conduct that would implicate or invoke the operation of the challenged zoning laws. Whatever harm may arise from the application of the zoning laws to TRC's property is merely conjectural at this time. "[C]onjectural" injuries do not suffice under Article III.[210] We therefore lack jurisdiction over Tartikov's free exercise, free speech, and free association claims under the federal and New York constitutions, RLUIPA substantial burden and exclusion and limits claims, FHA claims, and common law claims related to the Berenson doctrine. We vacate the judgment with respect to these claims and remand with instructions for the district court to dismiss them.

         We now turn to the remaining claims.

         II. Equal Protection Claims[211]

         "This Court has generally recognized three types of equal protection violations: (1) a facially discriminatory law; (2) a facially neutral statute that was adopted with a discriminatory intent and applied with a discriminatory effect . . .; and (3) a facially neutral law that is enforced in a discriminatory manner."[212] With respect to each of the challenged laws, Tartikov focused, and the district court based its holding, on the second theory.[213]

         Discriminatory purpose "implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."[214] "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."[215]This evidence may include "the series of events leading up to a land use decision, the context in which the decision was made, whether the decision or decisionmaking process departed from established norms, statements made by the decisionmaking body and community members, reports issued by the decisionmaking body, whether a discriminatory impact was foreseeable, and whether less discriminatory avenues were available."[216]

         "In reviewing a district court's decision in a bench trial, we review [its] findings of fact for clear error[, ] . . . its conclusions of law de novo," and mixed questions of law and fact de novo.[217] Of particular relevance here, "[w]e review a district court's finding of discrimination after a bench trial for clear error."[218]"[T]here is a strong presumption in favor of a trial court's findings of fact if supported by substantial evidence," and "[w]e will not upset a factual finding unless we are left with the definite and firm conviction that a mistake has been committed."[219] That said, "we have not hesitated to find clear error 'where the court has failed to synthesize the evidence in a manner that accounts for conflicting evidence or the gaps in a party's evidentiary presentation.'"[220]

         We consider the challenged laws in turn.

         A. Local Law No. 1 of 2001

         The district court found that the 2001 Law was motivated at least in part by discriminatory animus based on: (1) the timing of the law in relation to YSV's informal proposal to build a yeshiva on the property and the fact that there were no schools in the Village at that time, (2) a comment made by FPC in a memorandum (that specifically referenced YSV) stating that the zoning laws regarding schools were "scant" and FPC's comment at a planning board meeting that those laws "really stink," (3) a comment by Mayor Marshall during the same meeting that the Village would be "caught with [its] pants down," and (4) the Village's supposed reaction to earlier proposed projects - specifically, its opposition to the expansion of an Orthodox Hasidic yeshiva, Bais Yaakov, in Ramapo in 1996 and its support for an assisted-living facility. Reviewing as we must for clear error, these facts - whether individually or taken together - are insufficient to support an inference that the 2001 Law was enacted to discriminate against YSV in particular or Hasidic Jews in general.

         We agree with the district court that the timing of the 2001 Law was "in direct response to YSV's desire to build an Orthodox yeshiva on the Subject Property."[221] But the Village's choice to act in response to YSV's informal proposal says nothing of whether that choice was motivated by a positive, negative, or neutral reaction to YSV, its religious character, or its project.

         YSV first approached the Village in 1999, through the informal presentation described above, about building a yeshiva on the property. During the meeting, its representative noted, in response to questions from Village representatives, that YSV had conducted a traffic study, did not plan to build any dormitories, and had no further development plans in mind. Mark Healey, the FPC representative present at the meeting, then made the following comment:

"I took a look at the zoning for schools in the Village and they really stink, to put it straight. The[] only requirement is that they have to have five acres of land and the setbacks have to be twice what is ordinarily required. So that leaves an open question of issues that several members of the Board brought up. What can happen in the future?"[222]

         He went on to recommend that the Village "seriously consider looking at it[s] requirements for schools and address such issues as perhaps, more detailed or more tailored lot area requirements."[223] He stated also that the Village could craft requirements that "wouldn't restrict [YSV] from doing what they want to do but . . .would assure the Village that they're not going to go down the road and develop a lot more in the future."[224]

         The district court relied on the two comments from Healey in finding discriminatory animus. But these comments demonstrate an acceptance of YSV and its proposal rather than any religious animus. The only negative implication, if there was any, concerned the possibility of more intensive development in the future, regardless of its nature or the identity of any future developer.

         Of course, it theoretically is possible that Healy made these comments to cover up discriminatory intent and that the board so understood them. If that were so, the board's receptiveness and responsiveness to Healey's statements would render the 2001 Law a violation of the Fourteenth Amendment. Moreover, if discriminatory intent lurks within the background of a facially neutral decision, courts are obliged to smoke it out.[225] But there is no evidence on this record that Healey harbored any relevant animus or intended the recommendations to serve as cover for discriminatory goals. Nor is there evidence that the board understood his comments to promote a forbidden end. Without evidence of discriminatory intent, we must look to the effects of the changes that FPC recommended to the Village to determine how, if at all, they would have affected a formal YSV proposal, which was the impetus for the board's actions in this time period.

         In its January 24, 2000 memorandum addressed to the Village board of trustees, FPC recommended: (1) adding preschools to the list of authorized uses, (2) subjecting schools to special permit approval, and (3) revising minimum lot size requirements. The Village declined to adopt the first recommendation, as is evident from the definition of "school" and "educational institution" in the 2001 Law. It incorporated the second and third.

         The record is devoid of evidence that could support an inference of discriminatory intent in the Village's decision not to move forward with the first recommendation. Nothing in record suggests the Village had an invidious purpose behind continuing to exclude preschools from the list of authorized uses.[226] Nor would the recommendation have had a discriminatory effect given that its definition of "educational institution" applied to all schools equally. While YSV was the only school at the time that owned property and intended to build in Pomona, the 2001 Law would not have prevented YSV from applying for a special permit, nor would it have excluded YSV from the Village. In fact, YSV itself indicated that its proposed preschool was a smaller, subsidiary aspect of the project rather than its focus.[227]

         The second and third recommendations require more analysis. To begin, neither recommendation facially evidences discriminatory intent. In Bagnardi, the New York Court of Appeals described the requirement of a special permit application as "beneficial in that it affords zoning boards an opportunity to weigh the proposed use in relation to neighboring land uses and to cushion any adverse effects by the imposition of conditions designed to mitigate them."[228] An apt example is a minimum lot size requirement, which can control "the effect the use would have on . . . the general plan for development of the community."[229] The two amendments under discussion thus were addressed to legitimate planning concerns. And that is exactly what the evidence suggests the Village sought to do here. Indeed, the FPC memorandum ...

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