Rehabilitation Support Services, Inc. v. Town of Colonie

Filing 31

MEMORANDUM-DECISION and ORDER denying 21 Motion for Summary Judgment and denying 22 Motion for Summary Judgment. This case will proceed to trial on 6/4/2018 at 10:00am in Albany. (a final pretrial scheduling order to follow). Signed by Senior Judge Frederick J. Scullin, Jr on 3/20/2018. (bjw, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________________
REHABILITATION SUPPORT SERVICES, INC.,
Plaintiff,
v.

1:15-CV-589
(FJS/DJS)

TOWN OF COLONIE,
Defendant.
____________________________________________________
APPEARANCES

OF COUNSEL

MORITT HOCK & HAMROFF LLP
400 Garden City Plaza, Suite 202
Garden City, New York 11530
Attorneys for Plaintiff

ROBERT L. SCHONFELD, ESQ.

FRIEDMAN, HIRSCHEN AND
MILLER, LLP
100 Great Oaks Boulevard, Suite 124
Albany, New York 12203
Attorneys for Defendant

CAROLYN B. GEORGE, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court are Defendant's motion for summary judgment, see Dkt. No. 21,
and Plaintiff's motion for summary judgment, see Dkt. No. 22.

II. BACKGROUND
"Plaintiff . . . is a not-for-profit corporation that provides housing for people with mental
disabilities throughout New York State . . . and residential services for people with mental

disabilities in 13 counties to 1,423 people throughout New York State." See Dkt. No. 22-4
("Plaintiff's Statement of Facts") at ¶ 1 (citing DeVita Affidavit, par. 3); ¶ 2 (citing DeVita
Affidavit, par. 4). Defendant ("Defendant Town") is "a suburban community near the City of
Albany[, New York]." See Dkt. No. 1 ("Complaint") at ¶ 5. Plaintiff seeks "to establish housing for
people with mental disabilities at a site located at 179 Troy-Schenectady Road in . . . Defendant
Town . . . ." See id. at ¶ 1 ("the site").
Plaintiff commenced this action on May 13, 2015, following Defendant Town's enactment
of Town of Colonie Local Law No. 2 of the year 2015 ("Local Law 2-2015"), which rescinded the
site's classification as a "planned development district " ("PDD"). See Plaintiff's Statement of Facts
at ¶ 49 (citing Exhibit P, Transcript of Town Board meeting, 43:1-44:5; Local Law 2-2015 (Exhibit
S)); Dkt. No 22-23 (" Local Law 2-2015") at 2 ("rescinding Local Law 11 of 2007, [which had]
"change[d] the Zoning Classification of 179 Troy-Schenectady Road from a Commercial Office
Residential (COR) to a Planned Development District (PDD) Classification" and "returning the
zoning districts and zoning map to their former status").1 Plaintiff contends that, by enacting Local
Law 2-2015, Defendant Town "ma[de] it impossible for [Plaintiff] to develop its proposed housing
for people with disabilities or go forward with its tax credit application[.]" See Complaint at ¶ 34.
Plaintiff also avers that Defendant Town "rush[ed] through" the PDD rescission procedure "to
destroy [Plaintiff's] attempts to obtain tax credits from New York State." See Complaint at ¶ 44; see
also Plaintiff's Statement of Facts at ¶ 50 (stating that, as a result of the enactment of Local Law 2-

1

Generally, the Court's references to page numbers are to those page numbers that the
Court's electronic filing system ("CM/ECF") generates. However, citations to transcripts of any
kind are to the actual page numbers of those transcripts designated in the following manner:
[page number]:[line numbers].
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2015, Plaintiff's "tax credit application was denied since it was unable to show municipal support
for its proposed housing" (citing DeVita Affidavit, par. 20)). Plaintiff alleges that, "[b]ased upon
the sequence of events and the fact that [Defendant Town] applied different substantive and
procedural criteria to [Plaintiff's] PDD project than to other similarly situated PDD projects,
[Defendant Town] engaged in intentional discrimination on the basis of disability in violation of the
Federal Fair Housing Act" and "the Americans With Disabilities Act." See Complaint at ¶¶ 50, 53.
Plaintiff filed a motion for summary judgment with regard to both of its discrimination
claims and requested, among other things, that the Court annul Defendant Town's Local Law 22015, which "rescinded its previous local law of July 12, 2007 creating the PDD zoning
classification allowing residential housing at [the site]," and "direct[] [Defendant Town] to approve
any necessary amendments to the previous local law of July 12, 2007 and not interfere with
[Plaintiff] seeking tax credits from the State." See Complaint at WHEREFORE Clause.
Defendant Town also filed a motion for summary judgment on the ground that Plaintiff's
claims were not ripe for adjudication and that, therefore, the Court lacked subject matter jurisdiction
over this matter. See Dkt. No. 21-32 ("Defendant's Memorandum") at 6. Alternatively, Defendant
Town argued that Plaintiff's claims were without merit as a matter of law. See id.

III. DISCUSSION
A.

Subject matter jurisdiction
"Ripeness is a jurisdictional inquiry"; and, as such, the court "must presume that [it] cannot

entertain the [plaintiff's] claims 'unless the contrary appears affirmatively from the record.'"
Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005) (quoting Renne v.

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Geary, 501 U.S. 312, 316, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991)) (other citation omitted). A
plaintiff bringing a zoning challenge "must meet 'the "high burden" of proving that [the court] can
look to a final, definitive position from a local authority to assess precisely how [the landowner] can
use [its] property' before [the] Court may entertain [its] claims." Sunrise Detox V, LLC v. City of
White Plains, 769 F.3d 118, 121 (2d Cir. 2014) (quoting Murphy, 402 F.3d at 347).
To determine whether a case is ripe, the court must "'evaluate both the fitness of the issues
for judicial decision and the hardship to the parties of withholding court consideration.'" Murphy,
402 F.3d at 347 (quoting Abbott Labs., 387 U.S. at 149, 87 S. Ct. 1507). The "'fitness of the issues
for judicial decision' prong recognizes the restraints Article III places on federal courts." Id.
(citation omitted). As such, "[i]t requires a weighing of the sensitivity of the issues presented and
whether there exists a need for further factual development." Id. (citation omitted). "The 'hardship
to the parties' prong clearly injects prudential considerations into the mix, requiring [a court] to
gauge the risk and severity of injury to a party that will result if the exercise of jurisdiction is
declined." Id. (citing Abbott Labs., 387 U.S. at 149, 87 S. Ct. 1507).
In the context of land use disputes, the "fitness of the issues" prong requires that the court
ask whether "the government entity charged with implementing the regulations has reached a final
decision regarding the application of the regulations to the property at issue." Williamson Cty. Reg'l
Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The Second
Circuit has extended this "final decision" requirement to discrimination claims under the FHA and
ADA. See Sunrise Detox V, LLC, 769 F.3d at 123 (holding that "a plaintiff alleging discrimination
in the context of a land-use dispute is subject to the final-decision requirement unless he can show
that he suffered some injury independent of the challenged land-use decision"); see also

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Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 598
(S.D.N.Y. 2013) (stating that "[t]he final decision requirement . . . applies to land use disputes
arising under New York law" (citations omitted)). Lastly, the "final decision" requirement helps
courts "distinguish between those cases in which a plaintiff has suffered a 'concrete and
particularized,' 'actual or imminent' injury, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.
Ct. 2130, 119 L. Ed. 2d 351 (1992), and those in which the injury is 'merely speculative and may
never occur, depending on the final administrative resolution,' Dougherty, 282 F.3d at 90." Sunrise
Detox V, LLC, 769 F.3d at 122 (other citation omitted).
To satisfy the "final decision" prong of the ripeness inquiry, a plaintiff must demonstrate
that it has obtained a "final, definitive position as to the application of the relevant zoning laws to
the property from the municipal entity responsible for those laws." Congregation Rabbinical Coll.,
915 F. Supp. 2d at 597 (citation omitted). Therefore, generally, a plaintiff may not seek federal
court review of a zoning ordinance or provision until "'a development plan has been submitted,
considered and rejected by the governmental entity with the power to implement zoning
regulations.'" Id. at 598 (quoting S & R Dev. Estates, LLC v. Bass, 588 F. Supp. 2d 452, 461
(S.D.N.Y. 2008)) (citing Ecogen, 438 F. Supp. 2d at 155 (holding that the final decision rule
generally requires "that the plaintiff . . . have submitted at least one application for, and been
denied, permission for the proposed structure or use of the subject property")) (other citations
omitted).
The Second Circuit, however, does not apply the finality requirement "mechanically" and
will instead excuse a property owner "from obtaining a final decision if pursuing an appeal to a
zoning board of appeals or seeking a variance would be futile." Murphy, 402 F.3d at 349; see also,

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e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012 n.3 (1992) (stating that an application for a
variance was not required when it would be "pointless" as the defendant had stipulated that "no
building permit would have been issued . . . application or no application" (citation omitted)). But
see Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 136-37 (1978) (finding the plaintiffs'
claim unripe because, although the city commission had denied "applications to construct an office
building in excess of 50 stories above the Terminal m[ight] indicate that it w[ould] refuse to issue a
certificate of appropriateness for any comparably sized structure, nothing the Commission ha[d]
said or done suggest[ed] an intention to prohibit any construction above the Terminal"). "[T]o
invoke the futility exception, a plaintiff must demonstrate: (1) 'that [it] has filed "at least one
meaningful application,"' and (2) 'the inevitability of refusal of the [] application, taking into
consideration factors such as "the defendants' hostility, delay and obstruction."'" Congregation
Rabbinical Coll., 915 F. Supp. 2d at 601 (quoting Osborne, 2009 WL 884697, at *5 (quoting Dix v.
City of New York, No. 01-CV-6186, 2002 WL 31175251, at *6-7 (S.D.N.Y. Sept. 30, 2002))) (citing
S & R Dev. Estates, 588 F. Supp. 2d at 463-64) (footnote omitted).
Additionally, the Second Circuit has exempted plaintiffs "alleging discrimination in the
context of a land-use dispute" from meeting the final-decision requirement if they "can show that
[they] suffered some injury independent of the challenged land-use decision." Sunrise Detox V,
LLC, 769 F.3d at 123. "[F]or example, a plaintiff need not await a final decision to challenge a
zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1541
(11th Cir. 1994), or the manipulation of a zoning process out of discriminatory animus to avoid a

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final decision, Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 199-200 (5th Cir. 2000)."2
Sunrise Detox V, LLC, 769 F.3d at 123.
In Sunrise Detox V, LLC, the Second Circuit found that a plaintiff's discrimination claim was
not ripe for adjudication because, "[b]y forgoing the avenues for relief outlined in the
commissioner's revised determination, [the plaintiff] deprived the city of the opportunity to issue a
final decision." Sunrise Detox V, LLC, 769 F.3d at 124 (citing Ordinance § 6.4.5.2 (barring the city
from taking any further action on an application until the applicant procures all required variances)).
Thus, the court concluded that
[a] federal lawsuit at this stage would inhibit the kind of give-andtake negotiation that often resolves land use problems, and would in
that way impair or truncate a process that must be allowed to run its
course. In light of [the plaintiff's] midstream abandonment of the
zoning process, its claim is not yet ripe.

2

In Groome Res. Ltd, the Fifth Circuit, among other things, affirmed "the district court's
holding that the issue before this court [was] ripe for review." Groome Res. Ltd, L.L.C., 234
F.3d at 198. In addressing the "fitness of the issues for judicial decision" prong of the ripeness
test, the Fifth Circuit noted that the district court had
recognized that ninety-five days had elapsed between the time the
application was submitted and the filing of the lawsuit, and despite
the target date of forty-five days, the application had been pending
for 127 days without action at the time of the court's decision.
During this time, Groome Resources was required to postpone its
closing date several times. . . . Further, the court found that four
months after the filing of the lawsuit, the Parish officials in charge
of the application could not provide any timetable or plan for
acting on the application. While never formally denying the
request, the Parish's unjustified and indeterminate delay had the
same effect of undermining the anti-discriminatory purpose of the
FHAA. As no further factual development was required, the
district court exercised its discretion to resolve the legal issue
presented.
Id. at 199-200 (internal footnote omitted).
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Id.
Moreover, the court noted that, "[e]ven if it were true that the challenged rejection by the Building
Department was the product of a discriminatory motivation on the part of the official who issued it,
that illegal act would not necessarily require, as a remedy, the issuance of a permit to [plaintiff]."
Id. at 123. The court explained that, if the plaintiff
proceed[ed] with its application, the rejection [might] be reversed,
and the project [might] be permitted to proceed -- or the application
[might] be rejected on other, non-discriminatory grounds. Only after
[plaintiff] complete[d] the process [would] it be known whether the
allegedly discriminatory decision of the official had [had] any effect
at all on [plaintiff's] application.
Id.
On the other hand, in Sunrise Dev., Inc. v. Town of Huntington, 62 F. Supp. 2d 762
(E.D.N.Y. 1999), the court held that the plaintiff's claim met the finality requirement because it had
submitted a fully conforming application; and, thereafter, the town board had enacted a local law
"effectively den[ying] [the plaintiff's] application for a special use permit, and significantly
chang[ing] the standards and procedures governing [the plaintiff's] attempt to obtain approval for its
[project]." Id. at 770. The court found that "this decision [was] final because the Town ha[d] made
it clear that it [would] not willingly 'grandfather' [the plaintiff's] application under the old law[.]"
Id. at 770-71. Moreover, despite the fact that the plaintiff could apply to the town board for a
zoning change and might ultimately receive permission to build its project, such action would not
eradicate the plaintiff's injuries, i.e., it had invested more than $200,000 in the project; it could have
potentially lost the right to purchase the property altogether depending on the application's delay;
and it would be required to modify its project plans to meet the requirements of the new local law.
See id. at 771. For all these reasons, the court found that the plaintiff's claim was ripe for
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adjudication. See id.; see also Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 46 (2d
Cir. 2015) (holding that the plaintiff had standing to bring its discrimination claim when the city
rezoned the property in question, denied the plaintiff's special use permit thereby rendering the
development of the project "impossible," and the plaintiff had expended more than $81,000 in fees
in connection with the project's proposal).
Similarly, in Step by Step, Inc. v. City of Ogdensburg, 176 F. Supp. 3d 112 (N.D.N.Y. 2016),
the court granted the plaintiff's request for a preliminary injunction requiring the town to approve
the plaintiff's PDD application to establish a mental health facility. The court stressed the facts that
the city council had denied the plaintiff's original PDD application "without the benefit of any
reconsideration by the County Planning Board,"had enacted a new law that precluded the plaintiff's
project, and had "completely fail[ed] to describe the reasoning and logic behind the denial of [the
plaintiff's] application." Id. at 121, 129, 132.
In this case, the Town Board enacted Town of Colonie Local Law No. 11 of the year 2007
("Local Law 11-2007") "to facilitate residential development at the site." See Plaintiff's Statement
of Facts at ¶ 14 (citing Exhibit F, Town of Colonie Local Law 11-2007); Dkt. No. 22-10 ("P-Local
Law 11-2007") at 4 ("rezoning [the site] from a Commercial Office Residential (COR) District to a
Planned Development District (PDD)"). By enacting Local Law 11-2007, the Town Board rezoned
the site "to a [PDD] upon the condition that it shall be developed as a mixed use complex with 128
residential condominium apartment units in 16 buildings and a 6,000 sq. foot general office building
. . . ." See P-Local Law 11-2007 at 4. In addition, attached to Local Law 11-2007 was a list of
eighteen "Express Conditions," upon which the rezoning of the site was contingent. See Dkt. No.
21-4 ("D-Local Law 11-2007") at 6-8. However, the "developer [whose application for the PDD

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was granted] was unable to build the condominium units because of the recession . . . [and] in 2010
advised the Town that it was no longer interested in building the condominium units." See
Plaintiff's Statement of Facts at ¶ 16 (citing DeVita Affidavit, par. 6); id. at ¶ 17 (citing Exhibit G,
February 26, 2010 Memorandum).
In 2014, Plaintiff "proposed an innovative supportive housing project" on the site, see
Plaintiff's Statement of Facts at ¶ 19 (citing DeVita Affidavit, par. 7), which "would include the
construction of 128 units of supportive housing for people with mental disabilities, affordable
senior housing and workforce housing[,] see id. at ¶ 20 (citing DeVita Affidavit, par. 8). At that
time, the property was still classified as a PDD, see id. at ¶ 18 (citing Exhibit B, Deposition of
Joseph LaCivita, 30:2-3); and Defendant Town had taken no action on the PDD "even though it had
the discretion to eliminate the PDD and remove the property back to its original classification," see
id. (citation omitted), after the developer had advised the Town in 2010 that "it was no longer
interested in building the condominium units," see id. at ¶ 17 (citing Exhibit G, February 26, 2010
Memorandum). Plaintiff's representatives arranged to meet with Defendant Town officials to
discuss the proposed project. See id. at ¶ 24 (citing DeVita Affidavit, par. 11).
At that meeting on October 14, 2014, at which several of Plaintiff's representatives and
Joseph LaCivita, Defendant Town's Director of Planning and Economic Development, were
present, see id. at ¶ 25 (citing DeVita Affidavit, par. 12), Plaintiff's representatives stated that the
intended project would "use roughly the same footprint as the initial project," see id. at ¶ 21 (citing
DeVita Affidavit, par. 9), and "explained . . . that there was a need for [Plaintiffs] proposed housing
in the Town, that the project met the standards and objectives for a PDD, and that the project was
less dense than the initial project since there would be fewer bedrooms per unit and that the

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anticipated traffic would be reduced because the residents would not typically drive their own
cars[,]" see Dkt. No. 22-2, Affidavit of William DeVita, sworn to on February 2, 2017 ("DeVita
Aff."), at ¶ 13. According to Plaintiff, following this discussion, Mr. LaCivita informed Plaintiff's
representatives that Plaintiff "could file an amendment to the existing PDD law." See Plaintiff's
Statement of Facts at ¶ 28 (citing Exhibit B, Deposition of Joseph LaCivita, 67:6-67:12); Exhibit
22-6, Transcript of Deposition of Joseph LaCivita ("P-LaCivita Tr.") at 67:9-12 (testifying that the
PDD "would need an amendment and therefore we would need a subsequent meeting with Mr.
Magguilli [the Town Attorney] to go through what the process would hold").
At a follow-up meeting on November 10, 2014, to discuss the project, the Town Attorney,
Michael Maggiulli ("Town Attorney"), advised Plaintiff's representatives "that [Plaintiff] could not
file an amended application for a PDD and that [Plaintiff] instead had to file a brand new
application for a PDD." See Plaintiff's Statement of Facts at ¶ 33 (citing Exhibit I, Deposition of
Michael Magguilli, 29:22-30:6; Exhibit J, Deposition of Kenneth Kearney, 44:3-15). During that
meeting, Plaintiff contends that the Town Attorney asked Plaintiff's representatives "whether any of
the proposed residents were coming from the City of Albany," to which Plaintiff's representatives
responded in the affirmative. See Plaintiff's Statement of Facts at ¶ 34 (citing DeVita Affidavit, par.
17). According to Plaintiff's representatives, the Town Attorney "made an unpleasant expression
upon learning some of the residents would be coming from the City of Albany." See id. at ¶ 35
(citing DeVita Affidavit, par. 18; Exhibit J, Deposition of Kenneth Kearney, 58:16-22; Exhibit K,
Deposition of Brian Sipperly, 41:13-16). Plaintiff asserts that "[i]t is well understood by people in
the Capital District that if residents were coming from the City of Albany, more of those residents
would be people of color and people with mental illness." See Plaintiff's Statement of Facts at ¶ 36

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(citing DeVita Affidavit, par. 19; Exhibit H, Deposition of Paula Mahan, 29:22-30:6).
Following the November 10, 2014 meeting, Plaintiff learned from a member of Defendant
Town's Planning and Economic Development Department that the Town Attorney's Office intended
to seek a rescission of the PDD for the site, i.e., "to return the property to its former COR
classification." See Dkt. No. 22-17, Michael Lyons' email dated December 11, 2014 ("Lyons
email"), at 2; see also Plaintiff's Statement of Facts at ¶ 39 (citing Exhibit M, Michael Lyons email). Moreover, "[o]n December 18, 2014, the Town Board adopted a resolution put forth by
Town Attorney Magguilli calling a public hearing on January 22, 2015 in connection with the
proposed rescission of the PDD." See Plaintiff's Statement of Facts at ¶ 40 (citing Exhibit N,
Transcript of Town Board meeting, 27:7-28:2).
At the public hearing on January 22, 2015, Plaintiff's "representatives presented a letter to
each of the Town Board members explaining [Plaintiff's] proposed project[,]" see Plaintiff's
Statement of Facts at ¶ 42 (citing Exhibit O, Letter to the Town Board), and "presented [Plaintiff's]
position," see id. at ¶ 43 (citing Exhibit P, Transcript of Town Board meeting). Specifically, Mr.
Fogarty, Plaintiff's Director of Facilities, stated that, at a meeting that Plaintiff's representatives had
had with Mr. LaCivita, Mr. LaCivita had indicated that "he felt that [Plaintiff] could do a minor
amendment to the PDD which would make [Plaintiff] completely compliant with the PDD for
2007." See Dkt. No. 22-20 ("P-January 22, 2015 Public Hearing Tr.") at 19:3-6. Mr. Fogarty
further stated that he had understood from the October 2014 meeting with Mr. LaCivita that "all
[Plaintiff] needed was a minor amendment and it would be six months to process trough [sic]. He
explained it. Go to the Town Board and send it to Planning and bring it back to the Town Board,
set the zoning and come back and get the building permit." See id. at 21:20-24.

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At the conclusion of the January 22, 2015 public hearing, "[t]he Town Board voted 5-2 to
follow Town Attorney Magguilli's proposal to rescind the PDD on the property." See Plaintiff's
Statement of Facts at ¶ 49 (citing Exhibit P, Transcript of Town Board meeting, 43:1-44:5; Local
Law 2-2015 (Exhibit S) which was enacted as a result of that vote); Dkt. No. 21-11 ("D-January 22,
2015 Public Hearing Tr.") at 44:6. At that time "[Plaintiff] was neither the owner of the [site], nor
had it submitted any formal application to Defendant Town for its [project]." See Defendants'
Statement of Facts at ¶ 73 (citing Rosano tr: p. 44 line 14 - p. 45 line 20, p. 58 line 13 - p. 61 line
18; Green tr: p. 33 lines 19-23; Mahan tr: p. 56 lines 16-24; p. 57 lines 14-15). However, in
response to a question from a member of the Town Board prior to the vote, Plaintiff's attorney
explained that Plaintiff was "under contract to purchase the [site]," see P-January 22, 2015 Public
Hearing Tr. at 4:17-18, "contingent on obtaining the necessary approvals to develop the project,"
see id. at 6:22-24, and on getting the tax credits from New York State, see id. at 23:4-9.
Based on its review of the entire record in this case, the Court concludes that Plaintiff has
not met the "final decision" prong of the ripeness test. Therefore, the Court must consider whether
to excuse Plaintiff from this requirement based on the futility of requiring Plaintiff to engage in
further administrative action.
Plaintiff has produced some evidence that would support a finding that requiring Plaintiff to
obtain a final decision from Defendant Town would be futile. Although Plaintiff had no pending
formal application before the Town Board at the time that the Town Board enacted Local Law 22015 in January 2015, Plaintiff currently has and has had such an application pending before
Defendant Town for a significant period of time. In this regard, Plaintiff's counsel stated, in his
May 10, 2017 affidavit, that he and Defendant Town's counsel had

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agreed that [Plaintiff] would file an application for a PDD in an
attempt to resolve this case. . . . However, the parties agreed that this
application would neither be denominated as an application for an
amendment for a PDD nor an application for a new PDD so that
neither party's arguments would be compromised.
See Dkt. No. 27, Affidavit of Robert L. Schonfeld, sworn to May 10, 2017 ("Schonfeld May 10,
2017 Aff."), at ¶¶ 5-6.
Furthermore, Plaintiff's counsel asserted that "[i]t [was] understood that the application [would] be
heard by the Town's Planning Board on May 23, 2017." See id. at ¶ 7 (emphasis added). Since the
parties had not advised the Court of whether Defendant Town's Planning Board had taken any
action regarding Plaintiff's application on May 23, 2017, the Court directed the parties to file a joint
letter setting forth the current status of Plaintiff's application. See Text Order dated December 19,
2017. In a letter dated December 20, 2017, the parties advised the Court that, although Plaintiff
"[h]ad submitted an application [with regard to a PDD] to the Town of Colonie[, which was]
presently under review by the Town Planning Board," see Dkt. No. 30 at 1, it had not yet received a
final decision from Defendant Town regarding its pending PDD application, see id. (noting that
Plaintiff "anticipate[d] that the Planning Board and the Town [would] continue to process this
application, and that the application will be processed in an appropriate manner").
Despite Plaintiff's understanding that Defendant Town's Planning Board would discuss
Plaintiff's application in May 2017, by the time the parties submitted their joint letter on December
20, 2017, nearly seven months later, Defendant Town had taken no action regarding that
application. Given this lengthy delay and absent any explanation as to why Defendant Town had
not taken any action with regard to Plaintiff's application, the Court finds that, requiring Plaintiff to
engage in "'[a]ny further efforts to work within administrative apparatus would be an exercise in
futility.'" Sunrise Dev., Inc., 62 F. Supp. 2d at 770 (quoting Easter Seal of Society of New Jersey v.
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Township of North Bergen, 798 F. Supp. 228, 236 (D.N.J. 1992)) (other citation omitted).
Alternatively, the Court finds that, although Plaintiff might ultimately receive permission to
develop its project at the site, such action would not eradicate the injury that Plaintiff has already
suffered as a result of the delay that has already occurred. If the Court were to find that Defendant
Town's conduct was discriminatory, Plaintiff "would be entitled to a judgment against . . .
[D]efendant [Town] for the injuries suffered as a result of such conduct regardless of whether . . .
[Defendant] Town ultimately permit[ted] the [project] to be built [on the site]." Id. at 771.
Moreover, if the Court were to withhold consideration of Plaintiff's claims, "each day that passes
while the project is delayed means delay for [individuals with mental disabilities whom Plaintiff
serves] in obtaining the housing the [project] would afford." Id. "Moreover, delay could prevent
the project from being built and thus cause the loss of" any investment to date. Id. On the other
hand, "there is nothing to be gained by withholding judicial consideration of this controversy. The
allegedly discriminatory conduct has already occurred and its effects are known." Id. Thus, the
Court concludes that Plaintiff and the individuals with mental disabilities whom Plaintiff serves
"will suffer hardship if the [C]ourt does not promptly adjudicate this controversy." Id.
Accordingly, for all these reasons, the Court concludes that Plaintiff's claims are ripe for
judicial review.

B.

Merits of Plaintiff's ADA and FHA claims
Plaintiff alleges that,
[i]n rescinding the zoning classification based on the sequence of
events just prior to the rescission and in applying different substantive
criteria and procedures to [Plaintiff] than it did to other [Town of]
Colonie PDD projects, [Defendant Town's] actions constituted
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intentional discrimination on the basis of disability in violation of the
Federal Fair Housing Act (42 U.S.C. § 3601 et seq.) and Title II of the
Americans With Disabilities Act (42 U.S.C. § 12131 et seq).
See Complaint at ¶ 1.
Additionally, Plaintiff asserts that Defendant Town has failed to "produce [a legitimate nondiscriminatory] reason" for its decision and "its excuses . . . are pretextual." See Plaintiff's
Memorandum at 18 (citing Joseph's House and Shelter, Inc., . . . at *7-*8).
To the contrary, Defendant Town asserts that "Plaintiff cannot produce proof of any
discriminatory policy practiced by the Town" because Defendant Town "has supported, and
continues to support, affordable housing for veterans, seniors and the disabled." See Defendant's
Memorandum at 10 (citing Town Board transcript of 1/22/15 p. 24, Mahan tr: p. 72 line 7 - p. 74
line 17, p. 84 line 21 - p. 86 line 24; p. 67 line 13 - p. 68 line 17; LaCivita tr: p. 94 line 25 - p. 95
line 17; p. 57 lines 17-25). Moreover, Defendant Town asserts that, "[d]uring the Public Hearing on
January 22, 2015, the Town Board articulated seven different reasons why the existing PDD zoning
should be rescinded[.]" See id. at 15.3 Finally, Defendant Town argues that "[t]here is nothing in

3

Specifically, Defendant Town points to certain statements that members of the Town
Board made during the discussion prior to the Town Board's decision to enact Local Law 22015, which resulted in the rescission of the site's PDD zoning classification:
(1) The former PDD never received any zoning approvals. (Town
Board transcript 1/22/15 pp. 9, 10, 34-35)
(2) The former PDD developer had informed the Town he did not
intend to develop this project and had abandoned the PDD. (Town
Board transcript 1/22/15 pp. 26, 36)
(3) The former PDD did not provide a public benefit to the Town.
(Town Board transcript 1/22/15 pp. 13-14)
(continued...)
-16-

the evidence bearing on plaintiff's prima facie case which suggests the Town's stated reasons were
pretextual." See id. at 19.
"Both the FHAA and the ADA prohibit governmental entities from implementing or
enforcing housing policies in a discriminatory manner against persons with disabilities[,]"
Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003), superseded on other
grounds by regulation as stated in Mhany Mgt., Inc. v. Cty. of Nassau, 819 F.3d 581, 617 (2d Cir.
2016), and "[b]oth statutes apply to municipal zoning decisions[,]" id. (citations omitted). "Under
the FHA, it is unlawful '[t]o discriminate in the sale or rental, or to otherwise make unavailable or
deny, a dwelling to any buyer or renter because of a handicap.'" Step by Step, Inc., 176 F. Supp. 3d
at 123 (quoting 42 U.S.C. § 3604(f)(1)). The FHA also "provides that it is unlawful to 'discriminate
against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection with such dwelling, because of a handicap.'" Id.
(quoting [42 U.S.C.] § 3604(f)(2)). Similarly, "the ADA provides that 'no qualified individual with

3

(...continued)
(4) The former PDD had de facto and legally expired under the
Town Code. (Town Board transcript 1/22/15 pp. 2-3, 8, 36)
(5) A PDD zoning designation does not mean a project is "shovel
ready." (Town Board transcript 1/22/15 pp. 9, 10, 25)
(6) The neighborhood has changed since 2007, including
significant increase in neighboring residential properties. (Town
Board transcript 1/22/15 pp. 23-24)
(7) The Town's Comprehensive Plan may be subject to different
interpretations and the current Town Board did not enact the prior
PDD and would not know its thinking and rationale. (Town Board
transcript 1/22/15 pp. 12, 23, 24)

See Defendant's Memorandum at 15-16.
-17-

a disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.'" Id. (quoting 42 U.S.C. § 12132). "Zoning is 'service' within the meaning of
the ADA." Sunrise Dev., Inc., 62 F. Supp. 2d at 773 (citing Innovative Health Sys., 117 F.3d at 44).
Courts analyze claims of intentional discrimination under the FHA and ADA using the
McDonnell-Douglas burden-shifting analysis. See Step by Step, Inc., 176 F. Supp. 3d at 126
(citations omitted). "Under this analysis, a plaintiff first must establish a prima facie case of
discrimination by presenting evidence that 'animus against the protected group was a significant
factor in the position taken by the municipal decision-makers themselves or by those to whom the
decision-makers were knowingly responsive.'" Id. (quoting LeBlanc-Sternberg, 67 F.3d at 425).
"[T]he plaintiff's prima facie burden is 'minimal' and 'de minimus.'" Joseph's House & Shelter, Inc.
v. City of Troy Planning Bd., No. 05-CV-513, 2009 WL 2413936, *2 (N.D.N.Y. Mar. 31, 2009)
(citation omitted).
"If the plaintiff establishes [a] prima facie case, the burden of production shifts to the
defendant to provide a legitimate, nondiscriminatory reason for the decision." Step by Step, Inc.,
176 F. Supp. 3d at 127 (citations omitted). "If the defendant meets that burden, the plaintiff must
then prove that the defendant intentionally discriminated on the basis of a prohibited ground." Id.
(citation omitted). However, "'[a] plaintiff need not prove that discrimination was the sole
motivating factor in the challenged act; rather, a plaintiff need only show that discrimination was a
motivating factor.'" Id. (quoting Sunrise Dev., 62 F. Supp. 2d at 774 (citing Arlington Heights v.
Metro. Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977))).
To determine whether a defendant took a particular action with discriminatory intent, courts

-18-

consider the following factors: "(1) the discriminatory impact of the action; (2) the historical
background of the action; (3) the sequence of events leading up to the challenged action; (4)
departures from normal procedural sequences; and (5) departures from normal substantive criteria."
Id. (citing LeBlanc, 67 F.3d at 425; Sunrise Dev., Inc. v. Town of Huntington, 62 F. Supp. 2d 762,
774 (E.D.N.Y. 1999)). The Court will address each of these factors in turn.

1. Discriminatory impact of Defendant Town's decision to enact Local Law 2-2015
As the Supreme Court stated in Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429
U.S. 252 (1977), "[d]etermining whether invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be
available. The impact of the official action whether it 'bears more heavily on [a protected group]' . .
. may provide an important starting point." Id. at 266 (internal quotation omitted). "Sometimes a
clear pattern, unexplainable on grounds other than [the prohibited ground], emerges from the effect
of the state action even when the governing legislation appears neutral on its face . . . [b]ut such
cases are rare." Id. (internal citations and footnote omitted). Absent such "a pattern . . ., impact
alone is not determinative . . . ." Id. (internal footnote omitted).
As evidence of the discriminatory impact of Defendant Town's enactment of Local Law 22015, Plaintiff asserts that "[t]he local law rescinding the PDD on the [site] force[d] [Plaintiff] to
start the PDD procedure over again rather than seek an amendment of an existing PDD." See
Plaintiff's Memorandum at 12; see also Complaint at ¶ 34 (alleging that, by "enact[ing] a local law
rescinding the PDD for the site, [Defendant Town made] it impossible for [Plaintiff] to develop its
proposed housing for people with disabilities or go forward with its tax credit application at this

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time"); Plaintiff's Statement of Facts at ¶ 50 (stating that, "[a]s a result [of the enactment of Local
Law 2-2015, Plaintiff's] tax credit application was denied since it was unable to show municipal
support for its proposed housing" (citing DeVita Affidavit, par. 20)). Furthermore, Plaintiff
contends that a new application entails "time and money," as "a new application for a PDD . . .
require[s] an engineer [to do] engineering drawings and elevations and a new site plan not required
on an amendment to an existing PDD." See Plaintiff's Memorandum at 12 (citing Exhibit E
[Transcript of Deposition of Town Board Member Paul Rosano], 69:6-8, 69:10-70:2).
For purposes of this motion, the Court accepts, as true, Plaintiff's allegations that, as a result
of Defendant Town's enactment of Local Law 2-2015, Plaintiff would incur additional expenditures
of time and money as a result of having to apply for a new PDD rather than being able to amend the
existing PDD, and there is nothing in the record to suggest otherwise. However, although
Defendant Town's enactment of Local Law 2-2015 would arguably affect the mentally disabled
more heavily than it would affect other groups in the community, there is nothing in the record that
would support a finding that Defendant Town has engaged in a clear pattern of discrimination
against individuals with a disability. Thus, this is not one of those rare cases involving a facially
neutral statute where the court can discern, as a matter of law, that "an invidious discriminatory
purpose was a motivating factor" in a governmental entity's legislative action based on the impact
of that action alone. Arlington Heights, 429 U.S. at 266 (citations omitted). Accordingly, the Court
finds that this factor, although not dispositive, weighs slightly in favor of Defendant Town.

2. Historical background of Defendant Town's enactment of Local Law 2-2015
Defendant Town asserts that its enactment of Local Law 2-2015 did nothing more than

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"return[] the [site] to its previous zoning classification, Commercial Office Residential (COR)."
See Defendant's Statement of Facts at ¶ 25; see id. at ¶ 72. Plaintiff, however, asserts that, although
the previous developer, who had sought a PDD designation for the site had not moved forward with
developing the site after Defendant Town enacted Local Law 2-2007, which defined the site as a
PDD and, in fact, had notified Defendant Town in 2010 that it was abandoning its project for the
site, Defendant Town "took no action on the PDD immediately after the developer's letter [in 2010]
even though it had the discretion to eliminate the PDD and remove the property back to its original
classification[.]" See Plaintiff's Statement of Facts at ¶ 16 (citing DeVita Affidavit, par. 6); see id.
at ¶ 17 (citing Exhibit G, February 26, 2010 Memorandum); see id. at ¶ 18 (citing Exhibit B,
Deposition of Joseph LaCivita, 30:2-3). Furthermore, Plaintiff asserts that the Town Attorney's
explanation for not taking action sooner, i.e., that it was "just something that has been on my desk
and needs to get done and I remembered to do it" is simply not credible. See Plaintiff's Statement of
Facts at ¶ 41 (quoting Exhibit N, Transcript of Town Board meeting [12/18/14], 27:25-28:2). In
addition, Plaintiff asserts that Defendant Town has offered no other explanation for its sudden
reversion of the site to its prior zoning designation, other than to state that it was not required to
take any such action. Finally, Plaintiff contends that, "[a]ccording to Town Supervisor Paula
Mahon, there is a need for more affordable housing in this Town." See Plaintiff's Memorandum at 6
(citing Exhibit H, Deposition of Paul Mahan, 25:3-6; Planning Board Meeting 3/12/09, p. 49, line
15-19 ("Senior Housing is one of the Supervisor's key concerns because there is not a lot of it
within the town. She is looking for more sites that will fit it.")).
In further support of its position that Defendant Town "does not want housing for people
with disabilities," see Plaintiff's Memorandum at 13, Plaintiff points to the Town Board's actions

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and comments regarding the Alice Avenue project. That project was originally intended to include
housing for individuals with Alzheimer's disease, although the developer later withdrew that part of
the project. See id.; Dkt. No. 22-24 (Tr. Planning Board - Alice Avenue Project") at 2:13-14, 17-19.
Plaintiff further asserts that Defendant Town "discouraged" the Alice Avenue developer from
developing housing for people with Alzheimer's. See Dkt. No. 25-1 ("Plaintiff's Opposition
Memorandum") at 6. For example, Plaintiff notes that, at the first Town Planning Board hearing
regarding the project, Mr. LaCivita asked, "Is the Alzheimer's really needed here?," despite the fact
that (a) the developer stated the site would be a "very secure environment for people not leaving,"
see Dkt. No. 22-25 ("Tr.-2 Planning Board - Alice Avenue Project") at 38:5-6, and "[i]t [would be]
relatively easy to make certain that nobody [left] [the site]," see id. at 38:10-12; and (b) the
developer conducted a market study and found there was a "significant shortfall in both senior
apartments . . . and a shortfall in Alzheimer's units." See Plaintiff's Statement of Facts at ¶ 56; Tr.-2
Planning Board - Alice Avenue Project at 47:18-20. Finally, Plaintiff points out that Defendant
Town did not rescind the PDD status of a project for senior housing on Alice Avenue despite the
fact that the developer had not worked on the project for more than three years after Defendant
Town granted its initial PDD application in 2011, yet rescinded the site's PPD status in this case.
See P-LaCivita Tr. at 44:19-45:14; Plaintiff's Statement of Facts at ¶ 54.
Similarly, Defendant Town considered rescinding the Loudon House project but declined to
do so. See Plaintiff's Statement of Facts at ¶¶ 57-58 (citing Exhibit I, Magguilli Deposition, 69:2270:5). Instead, the Town Board "conditionally rescinded" the project's PDD status and gave the
developers eighteen months to complete their project. See Dkt. No. 22-13 ("P-Maggiulli Tr.") at
69:18-70:5. In addition, Plaintiff argues that, prior to conditionally rescinding the PDD at the

-22-

Loudon House site, "the Town engaged in environmental studies . . . [and] Town Attorney
[Magguilli] testified in his deposition that he did not know if any environmental studies were
conducted prior to the rescission of the [Plaintiff's] PDD even though he orchestrated that
rescission." See Plaintiff's Statement of Facts at ¶ 59 (citing Exhibit W (Environmental Studies
performed before decision to consider rescission of the Loudon House PDD); Exhibit I, Magguilli
Deposition, 76:7-11). Finally, Plaintiff asserts that the Town Attorney does not want housing for
people with disabilities as evidenced by the allegedly "unpleasant expression" he made "upon
learning that some of the residents would be coming from the City of Albany." See Plaintiff's
Memorandum at 13.
In contrast to these allegations, Defendant Town notes that Plaintiff did not have an
application pending before the Town Board when the Town Board acted to rezone the site. See
Defendant's Memorandum at 11 (citing Statement of Material Facts #63). Furthermore, Defendant
Town disputes Plaintiff's allegations that its zoning decisions with regard to the Alice Avenue and
Loudon House projects evince discriminatory intent. See Dkt. No. 28-3 ("Defendant's Reply
Memorandum") at 5. For example, Defendant Town disputes that it discouraged the developer of
the Alice Avenue project from developing housing for people with Alzheimer's disease out of a
discriminatory intent. See id. Instead, Defendant Town argues that the developer "eliminated an
Alzheimer's Care Center from its project because it [was] to be built on a steep grade in close
proximity to NYS Route 2 where 'dementia residents c[ould] wander from their residence and
become disoriented, missing and lost very quickly.'" See id. (quoting Hershberg letter, dated April
16, 2010 (citing Alice Avenue PDD documents attached to George affid. at Exhibit A)). In
addition, although Mr. LaCivita stated at the Planning Board meeting held to discuss the Alice

-23-

Avenue project that "'[s]enior [h]ousing [was] one . . . key concern[] because there [was] not a lot of
it within the town[,]'" he explained that the site "'had a really steep gradient'" and "'was highly
wooded and very treed,' thus questioning whether [the] particular location was safe for at-risk
Alzheimer's patients." See id. (quoting Exh. B to Schonfeld Affid. p. 49 lines 7-9). Moreover,
Defendant Town states that the reason it did not rescind Alice Avenue's PDD despite three years of
non-development was because the original developer of the project spoke to the Town Board
"several times" to make proposed changes to the project and contacted the Town's Planning and
Economic Development Department. See Dkt. No. 21-23 (D-LaCivita Tr.") at 44:20-45:14; Dkt.
No. 26-5, Defendant's Response to Plaintiff's Statement of Facts ("Defendant's Responsive
Statement of Facts") at ¶ 54 (stating that "[t]he deposition testimony of Joseph LaCivita (Exh. B to
Schonfeld Affid.) was misquoted. As to the Alice Avenue project, Mr. LaCivita testified "it's still
in forward motion, he's still trying to keep that site going forward." (p. 44 line 25 - p. 45 line 2)).
Lastly, with regard to the Loudon House project, Defendant Town notes that "Local Law
No. 5 enacted July 26, 2012 by the Town Board rescinded [the Loudon House] PDD designation
but did not revoke the building permit which had an 18-month expiration date[.]" See Defendant's
Responsive Statement of Facts at ¶ 58 (citing Exh. D to George Affid.). Moreover, Defendant
Town states that "[t]he developer had . . . invested millions of dollars in developing the property,
including erection of a concrete foundation, an elevator shaft, roads and other infrastructure." See
Defendant's Reply Memorandum at 8 (citing Loudon House PDD documents, Exhibit D to George
Affid.)
In assessing whether a municipality acted with discriminatory intent, "historical
background" provides one evidentiary source, "particularly if it reveals a series of official actions

-24-

taken for invidious purposes." Vill. of Arlington Heights, 429 U.S. at 267 (citations omitted); see
also Stewart B. McKinney Found., Inc. v. Town Planning & Zoning Comm'n of Town of Fairfield,
790 F. Supp. 1197, 1211 (D. Conn. 1992) (finding that "the historical background and the sequence
of events leading up to the challenged [zoning] decision" supported inference of discriminatory
animus against the plaintiff wishing to rent homes to HIV-infected persons when the plaintiff was
met with "organized, widespread, and effective opposition," future neighbors hired counsel, the
neighborhood held a rally and a press conference against the plaintiff, and when a public
information forum sponsored by the plaintiff deteriorated into a "'riotous . . . totally out of control'"
situation (quotation omitted)).
In Sunrise Dev., Inc., for example, the court noted that the historical background of the town
board's enactment of a local law rendering nugatory Sunrise's special use permit for a "congregate
care facility" ("CCF") for senior citizens and the disabled weighed in favor of a finding of
discriminatory intent. See Sunrise Dev., Inc., 62 F. Supp. 2d at 769. As evidence of this intent, the
court noted that the town board had "expedited" the passage of the local law completely disallowing
CCFs in all zoning districts except one, despite the recommendation of the town-established
Citizen's Advisory Committee, which had advised "only limited regulation of senior housing[.]" Id.
at 774-75.
As to the historical background of the enactment of Local Law 2-2015, the Court finds that,
although Defendant Town points to seven statements that Town Board members made during their
discussion of the Town Attorney's proposal to enact Local Law 2-2015, Defendant Town has never
provided a credible explanation for why, despite the fact that the previous developer had notified
Defendant Town that it would not continue the project in 2010, Defendant Town took no action to

-25-

return the site to its previous zoning classification until Plaintiff expressed an interest in amending
the PDD to construct housing for the mentally disabled four years later. Thus, the Court finds that
this factor weighs in favor of Plaintiff.

3. Sequence of events leading up to Defendant Town's enactment of Town Law 2-2015
Plaintiff argues that the "rapid sequence of events leading to the Town Board's rescission of
the PDD on the site" is evidence of discrimination. See Plaintiff's Memorandum at 14. First,
Plaintiff points out that the Town Attorney "expressed displeasure" with Plaintiff's proposed
housing project at their initial meeting on November 10, 2014. See id. Thereafter, on December 3,
2014, Plaintiff wrote a letter to the Town Attorney advising him of its intent to apply for tax credits
with the State. See id. (citing Exhibit L). "Within days of that letter, [the Town Attorney] informed
a member of the Town's Planning and Economic Development Department that he was seeking to
rescind the PDD on the site at issue." See id. (citing Exhibit M). At the Town Board meeting in
December 2014, when asked why he wished to rescind the PDD status of the property nearly five
years after learning of the prior developer's abandonment of the original project, the Town Attorney
replied that "[i]t was just something that ha[d] been on [his] desk and need[ed] to get done and [he]
remembered to do it," see Dkt. No. 22-18 ("Tr. Town Board Meeting December 18, 2014") at
27:25-28:2, in order to "clear any confusion resulting from having a long-since lapsed PDD on the
Town Zoning Map," see Defendant's Statement of Facts at ¶ 61.
To the contrary, Defendant Town argues that the sequence of events leading up to the
rescission of the site's PDD status does not evince discriminatory intent. See Defendant's
Memorandum at 13; Defendant's Reply Memorandum at 6-7. Defendant Town notes that Town

-26-

Board members testified that they had never heard of the PDD in question until the Town Attorney
placed it on the Town Board agenda, and no one appeared for the public hearing at which the matter
was discussed. See Defendant's Memorandum at 13 (citing Statement of Material Facts #66, 69,
70). As such, although Defendant Town asserts that the site's PDD status had "de facto sunsetted
on its own[] due to its owner's failure to move the project forward," Defendant Town argues that it
acted "deliberately" and only "put the matter on for rescission . . . when it became necessary to
provide clarity and accuracy on the Town Zoning Map[.]" See id. (citing Statement of Material
Facts #61).
Furthermore, Defendant Town asserts that it is inconsequential that it did not move to
rezone the property until more than three years after inactivity because "there is no requirement that
the Town Board must act as soon as three years have elapsed." See Defendant's Memorandum at
11. Defendant Town explains that this flexibility is needed because "sometimes a developer does
not have funding in place" or the Town Board might choose not to rescind the status in a case in
which a new developer "wanted to renew the project as it stands." See id. at 12. Moreover,
Defendant Town notes that, in this case, Plaintiff's project was "in no way a renewal of a
previously-approved project." See id. Specifically, Defendant Town notes that Plaintiff's project
proposed "strictly rental units" with "no home ownership" and "no commercial uses," while the
original PDD for the site provided for a "mixed use complex," which included condominium
apartment units and a general office building. See id.; Local Law 11-2007 at 4. Furthermore,
Defendant Town asserts that it waited nearly five years to rescind the site's PDD status because
interest in the site was not "triggered" until Plaintiff's engineer contacted Defendant Town about the
status of the site. See Defendant's Reply Memorandum at 3. Finally, Defendant Town asserts that

-27-

"[l]ack of discriminatory animus is further demonstrated by the absence of public or political
pressure urging the Town Board to vote one way or another." See Defendant's Memorandum at 13
(citations omitted).
To determine whether the sequence of events leading up to a challenged action supports an
inference of discriminatory intent, courts consider whether the challenged action represented an
"abrupt change from . . . prior consistent course of conduct," Mhany Mgt., Inc. v. Cnty. of Nassau,
819 F.3d 581, 607 (2d Cir. 2016), and whether the challenged decision was made "in the context of
strong, discriminatory opposition[,]" Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d
37, 49 (2d Cir. 1997) (stating that "a decision made in the context of strong, discriminatory
opposition becomes tainted with discriminatory intent even if the decisionmakers personally have
no strong views on the matter" (citations omitted)). Additionally, courts look to whether those who
made the challenged zoning decision provided "credible justification" for that decision. Innovative
Health Sys., Inc., 117 F.3d at 49.
As Defendant Town points out, the Town Board has discretion to return a property to its
prior zoning status after more than three years of inactivity, see Dkt. No. 22-5 ("Town Code") at 5-6
(providing that "[t]he Town Board may act to return [a] property to its prior zoning district
classification if it finds that: . . . (b) The PDD approval has expired by the failure of the applicant to
make substantial and continuing progress in the development of the project for more than three
years from the date of final approval"). In this case, however, Defendant Town chose to do so only
after Plaintiff entered into discussions with Defendant Town officials about its intention to apply for
an amendment to the original PDD to commence its project for housing for individuals with mental
disabilities. Such an action would arguably support a finding that this was an "abrupt change" from

-28-

Defendant Town's prior course of conduct with regard to other PDDs, e.g., the Alice Avenue and
Loudon House projects.
Moreover, the Town Attorney's explanation for why he did not seek rescission of the site's
PDD status prior to December 2014, i.e., that "[i]t was just something that ha[d] been on [his] desk
and need[ed] to get done and [he] just remembered to do it," is not convincing.
Furthermore, Defendant Town does not point to anything in the record to support its
assertion that a PDD automatically expires, i.e., "de facto sunset[s]" on its own if a developer fails
to make substantial and continuing progress in the development of a project for more than three
years from the date of final approval.
Accordingly, for all of the above-stated reasons, the Court finds that this factor weighs in
favor of Plaintiff.

4. Departures from normal procedural sequences and normal substantive criteria
As proof that Defendant Town departed from normal procedural sequences and normal
substantive criteria in rescinding the site's PDD status, Plaintiff points to the Northern Pass and
Maxwell Road projects, two prior-existing PDD projects "that were not aimed at people with
disabilities" that the Town Board allowed developers to amend. See Plaintiff's Memorandum at 16.
Plaintiff asserts that, "[i]n the same year as the PDD on the . . . site was rescinded, the Town Board
allowed the amendment of a PDD for a housing project known as 'Northern Pass' which permitted
the developer of that project to build twelve additional apartment units over that allowed in the
initial PDD." See id. (citing Exhibit C); Dkt. No. 22-7 ("Northern Pass Resolution") at 3. However,
although Plaintiff's "proposal was going to involve a less dense use of the site than that proposed in

-29-

the initial PDD, the Town Board did not allow Plaintiff to amend the PDD." See Plaintiff's
Memorandum at 16. Similarly, Plaintiff argues that Defendant Town refused to allow it to amend
the PDD "to go from condominium units to rental units" but allowed an amendment to the Maxwell
Road project "which allowed for the development of 51 twin townhouse units in place of 18
condominium units and one estate lot." See id. (citing Exhibit D). Finally, Plaintiff argues that
Defendant Town departed from its normal procedural sequences and substantive criteria when it
enacted Local Law 2-2015 as that Local Law "was aimed at delaying housing for people with
disabilities." See Dkt. No. 25-1 ("Plaintiff's Opposition Memorandum") at 10 (citing Exhibit E to
Plaintiff's Motion, 69:6-70:2).
To the contrary, Defendant Town argues that it did not "delay[] or accelerate[]" any
application procedures. See Defendant's Memorandum at 14. Additionally, Defendant Town
asserts that it followed all "procedural and substantive requirements" and properly provided
"[n]otice of the public hearing." See id. (citing Town Board Hearing 1/22/15 pp. 28-29).
Furthermore, Defendant Town notes that, under New York State Town Law § 265 and Colonie
Town Code § 190-130(A), it was permitted to amend its zoning laws. See id.
Finally, Defendant Town disputes Plaintiff's allegations that it departed from normal
procedural sequences and substantive criteria in this case by not permitting Plaintiff to apply for a
PDD amendment even though it had permitted amendments to the Northern Pass and Maxwell
Road projects. See Defendant's Opposition Memorandum at 7-8. Specifically, Defendant Town
argues that it permitted the developer to amend the Northern Pass PDD because the developer's
proposal did not "increase the number of buildings" and was a "'minor modification'" to an already
approved plan. See id. at 7. Furthermore, Defendant Town contends that "no additional roadways

-30-

had to be developed," and the developer "demonstrated that the amendment produced a 'minor to
small impact' on the physical environment and community services." See id. (citing Northern Pass
PDD documents, Exh. B to George Affid.). In contrast, according to Defendant Town, Plaintiff did
not wish to amend a PDD for an approved project but rather wished "to amend an entirely different,
prior project[.]" See id. at 8. Finally, Defendant Town argues that, with regard to the Maxwell
Road project, that project "required changes to the site because of a conservation easement" but still
remained "a senior townhouse project with one less unit." See Defendant's Reply Memorandum at
5.
Departures from a town board's normal substantive criteria and procedural sequences in
response to a zoning application can support an inference of discriminatory intent. See Step by
Step, Inc., 176 F. Supp. 3d at 129 (finding the town board's delay to consider a completed
application while the municipality took steps to modify the zoning code as an attempt to prohibit
the developer from going forward with its supportive housing project supported an inference of
discriminatory intent); Sunrise Dev., Inc., 62 F. Supp. 2d at 775 (noting that "sudden and dramatic"
changes to existing zoning ordinances, absent an emergency and without "substantive" reasons
stated on the record, amounted to deviation from normal procedural sequences).
In this case, the fact that Defendant Town permitted PDD amendments for the Northern Pass
and Maxwell Road projects but did not permit Plaintiff to amend the site's existing PDD does not
definitively show that Defendant Town failed to adhere to its substantive criteria or procedural
sequences with regard to its decision to rescind the site's PDD. Defendant Town has come forward
with several reasons why amendments were appropriate in those cases and not in this one. For
example, the Northern Pass and Maxwell Road projects involved granting amendments to the same

-31-

developers who commenced the projects and who had already expended time and money on the
projects. In contrast, Plaintiff was a new developer, who sought to step into the shoes of a prior
developer to begin a project that was, at least according to Defendant Town, significantly different
than the project the Town Board had originally approved. Furthermore, Defendant Town explained
that it had granted amendments to the Northern Pass and Maxwell Road Projects because the
proposed changes were minor, whereas, at least according to Defendant Town, Plaintiff's proposal
involved major changes.
On the other hand, Plaintiff has presented evidence regarding Defendant Town's rather hasty
decision to enact Local Law 2-2015, after doing nothing for several years, which arguably would
support a finding of pretext. See Sunrise Dev., Inc., 62 F. Supp. 2d at 775 (quoting Assisted Living
Assoc. of Moorestown v. Moorestown Township, 996 F. Supp. 409, 436 (D.N.J. 1998) [(stating that
"[a] sudden and dramatic change to an existing zoning ordinance in response to a particular landuse application in a hasty effort to conform local zoning law to so-called fundamental Township
land-use policies bespeaks pretext")]) (other citation omitted).
For all of these reasons, the Court finds that this factor weighs in neither party's favor.
In sum, the Court finds that, considered in their entirety, these factors do not weigh strongly
in either party's favor. However, given the fact that Plaintiff's burden to establish a prima facie case
of discrimination is de minimus, the Court finds that Plaintiff has presented sufficient evidence to
meet its burden. Likewise, Defendant Town has come forward with evidence sufficient to meet its
burden of production. With regard to Plaintiff's ultimate burden to prove that Defendant Town
intentionally discriminated against Plaintiff when it decided to enact Local Law 2-2015, thereby
rescinding the site's PDD zoning status, the Court concludes that there are material issues of fact

-32-

that preclude the Court from finding in either party's favor as a matter of law. At the summary
judgment stage, it is not the court's job "'to resolve issues of fact[.]'" France v. Corr. Officer Elgin
Morton, No. 12-CV-5576, 2018 WL 1276860, *8 (S.D.N.Y. Mar. 9, 2018) (quoting Brod, 653 F.3d
at 164). Rather, the court's job is limited "'to assess[ing] whether there are factual issues to be
tried.'" Id. (quoting Brod, 653 F.3d at 164). Accordingly, the Court denies Plaintiff's and
Defendant's motions for summary judgment.

IV. CONCLUSION
Having reviewed the entire record in this matter, the parties' submissions and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion for summary judgment, see Dkt. No. 21, is DENIED;
and the Court further
ORDERS that Plaintiff's' motion for summary judgment, see Dkt. No. 22, is DENIED; and
the Court further
ORDERS that the trial of this matter shall commence on June 4, 2018, at 10:00 a.m. in
Albany, New York.4

IT IS SO ORDERED.

Dated: March 20, 2018
Syracuse, New York

4

The Court will issue a separate Final Pretrial Order, setting forth the dates on which the
parties must file and serve their pretrial papers, including any motions in limine, as well as the
date for the Final Pretrial Conference.
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