Westchester Day School v. Village of Mamaroneck

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiff Westchester Day School (‘WDS” or the “School”) brings this action against defendants the Village of Mamaro-neck (the “Village”), the Zoning Board of Appeals of the Village of Mamaroneck (the “ZBA”), Mauro Gabriele, George Mgrdite-hian, Barry Weprin and Clark Neuringer, in their official capacities as members of the ZBA, and Antonio Vozza, in his official capacity as a former member of the ZBA, (collectively, the “defendants”). Plaintiff seeks relief under: (1) the Religious Land

*483

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc

et seq.

(“RLUIPA”), alleging,

inter alia,

that defendants substantially burdened WDS’s religious exercise by denying its application for a special permit to construct a new school building and to renovate and improve other existing buildings on the WDS campus; and (2) the All Writs Act, 28 U.S.C. § 1651 , alleging,

inter alia,

that the ZBA’s denial of WDS’s application was arbitrary and capricious and not supported by the evidence in the record.

1

This Court conducted a noncontinuous, seven-day bench trial beginning November 14, 2005 and concluding November 29, 2005. For the reasons that follow, we enter judgment in favor of plaintiff.

2

Pursuant to Fed. R. Civ. P. 52(a), the following opinion sets forth the Court’s Findings of Facts and Conclusions of Law.

BACKGROUND

I.

Procedural History

WDS commenced its action on August 7, 2002, following a vote by the ZBA six days earlier that purported to rescind a Negative Declaration issued by it on February 7, 2002 in connection with a special permit application filed by WDS on October 10, 2001 (the “Application”). Specifically, the Application requested that the ZBA modify WDS’s existing special permit to allow construction of a new 44,000 square foot school building (“Gordon Hall”) as well as make related improvements to its campus (collectively, the “Project”). In its initial Complaint, WDS asserted claims under: (1) RLUIPA, 42 U.S.C. § 2000cc

et seq.;

(2) N.Y. Village Law § 7-712 -a(12); (3) N.Y. C.R.R. § 617.7 (f); and (4) 42 U.S.C. § 1983 . On September 18, 2002, defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and WDS cross-moved for partial summary judgment under Rule 56. By Opinion and Order dated December 4, 2002 (the “December 2002 Order”), this Court granted WDS’s motion for partial summary judgment, holding that the Negative Declaration was not properly rescinded as a matter of State law and therefore remained in full force and effect.

See Westchester Day Sch. v. Vill. of Mamaroneck,

236 F.Supp.2d 349 (S.D.N.Y.2002) (Conner, J.) (“Westchester I”). This required the ZBA to continue WDS’s Application to the special permit hearing stage.

On May 13, 2003, the ZBA denied WDS’s special permit modification and, on May 29, 2003, WDS filed an Amended Complaint challenging the ZBA’s decision, asserting claims under (1) RLUIPA; (2) 42 U.S.C. § 1983 ; and (3) the All Writs Act. On June 23, 2003, defendants filed an Answer and Affirmative Defenses. No party demanded a jury trial. WDS moved for partial summary judgment and, by Opinion and Order dated September 5, 2003 (the “September 2003 Order”), this Court granted WDS’s motion, holding that defendants violated RLUIPA.

See Westchester Day Sch. v. Vill. of Mamaroneck,

280 F.Supp.2d 230 (S.D.N.Y.2003) (Conner, J.) (‘Westchester II”). In doing so, this Court annulled and set aside the May 13, 2003 determination of the ZBA, and ordered the immediate and unconditional issuance of WDS’s special permit modification.

See id.

at 243-44 . This Court also

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upheld the constitutionality of. RLUIPA.

See id.

at 233-39 .

Defendants appealed the September 2003 Order and, on September 27, 2004, the Second Circuit vacated and remanded the case for further proceedings (the “Second Circuit Opinion”).

See Westchester Day Sch. v. Vill. of Mamaroneck,

386 F.3d 183 (2d Cir.2004).

On November 5, 2004, defendants filed a First Amended Answer and Affirmative Defenses and moved for leave to file a jury demand or, in the alternative, for this Court to order a jury trial. By Opinion and Order dated April 1, 2005, this Court denied defendants’ motion.

See Westchester Day Sch. v. Vill. of Mamaroneck,

363 F.Supp.2d 667 (S.D.N.Y.2005) (Conner, J.) (“Westchester III”).

On March 24, 2005, defendants moved to dismiss the Amended Complaint and for summary judgment. By Opinion and Order dated July 27, 2005 (“July 2005 Order”), this Court denied defendants’ motion with respect to WDS’s claims under RLUIPA and the All Writs Act, but granted the motion with respect to WDS’s claim under 42 U.S.C. § 1983 .

See Westchester Day Sch. v. Vill. of Mamaroneck,

379 F.Supp.2d 550 (S.D.N.Y.2005) (Conner, J.) (“Westchester IV”). In addition, this Court again upheld the constitutionality of RLUIPA.

See id.

at 554 .

II.

The Trial

Trial of this action commenced on November 14, 2005, and lasted for seven days. WDS presented eleven witnesses (including one expert witness) as part of its case-in-chief: (1) Rabbi Joshua Einzig, Headmaster of WDS; (2) Rachel Goldman, Executive Director of WDS; (3) Caren Hammerman, Chairman of the Board of Trustees of WDS from 2000-04, President from 1997-2000 and parent of four WDS graduates; (4) Vicky Rubenovitch-Fish, Assistant Principal of WDS; (5) Michael Turek, a parent of two current WDS students and a member of the Orthodox Jewish community of New Rochelle, New York; (6) Dr. Marvin Schick, an expert on Jewish education; (7) Russell Davidson, an architect specializing in school design and partner of the firm Kaeyer, Garment & Davidson (“KGD”), architects to WDS; (8) J. Michael Divney, P.E., AICP, a licensed professional engineer, certified planner and partner of the firm Divney, Tung & Schwalbe (“DTS”), site planners and traffic consultants to WDS; (9) James Staudt, Esq., a paidner of the law firm McCullough, Goldberg & Staudt, land use counsel to WDS; (10) Frank Fish, a partner of the firm Buckhurst Fish

&

Jacquemart, Inc. (“BFJ”), planning and traffic consultants to the ZBA; and (11) Dr. Michael Horod-niceanu, a traffic consultant retained by opponents of the Project and upon whose opinion, as discussed below, the ZBA relied in denying the Application. In rebuttal, WDS called David Kalman, President and Board member of Westchester Hebrew High School (‘WHHS”).

Defendants presented four witnesses: (1) Mauro Gabriele, Chairman of the ZBA since December 2002; (2) Peter Jackson, a former ZBA member who returned to the ZBA in December 2002; (3) Georges Jac-quemart, a partner of BFJ specializing in traffic planning; and (4) Christopher Til-ley, a neighbor of WDS and an opponent of the Project.

Over the course of the trial, the Court admitted into evidence more than 125 exhibits, including all of the transcripts of the ZBA hearings during which the Application was discussed. The Court also admitted into evidence materials relating to WDS and its dual curriculum, such as cur

*485

riculum guides and class lists.

3

In addition, the Court admitted into evidence expert reports from Dr. Schick, Fish and Jacquemart. Also before the Court are designated excerpts from the depositions of ZB A members Mgrditchian, Neuringer and Weprin, none of whom testified at trial, as well as Gabriele and Jackson.

The Findings of Fact and Conclusions of Law set forth below, pursuant to Fed. R. Civ. P. 52(a), are based on the extensive record developed over the course of the bench trial during which, as set forth above, plaintiff and defendants had a full and fair opportunity to present their cases to the Court.

FINDINGS OF FACT

I.WDS and the Orienta Point Neighborhood

1. Since 1948, WDS has operated an Orthodox Jewish day school in the Orienta Point neighborhood of the Village (the “Property”). (SAF ¶ 1; Tr. 169-70; Pl. Ex. 3(4).)

4

2. The Property is owned by Westchester Religious Institute (“WRI”), which allows WDS, among other entities (see infra ¶ 4), to use its property. (SAF ¶ 6; Tr. 62, 150.)

A.

Character of the WRI Property

3. The Property, located at 856 Orienta Avenue, Mamaroneck, New York 10543, east of Boston Post Road (U.S. Route 1) in the Village, is a 25.75-acre, largely undeveloped parcel bounded by Orienta Avenue, Skibo Lane, Walton Avenue, Bleeker Avenue and the Long Island Sound. (SAF ¶¶ 1, 6; Pl.Ex. 116.)

4. In addition to WDS, WHHS and a synagogue operate on the Property. (SAF ¶ 9; Tr. 62.)

5. WHHS and WDS are separate entities, maintain separate records and have separate Boards of Trustees, each of which oversees the operations of its respective institution. (SAF ¶ 9; Tr. 62, 65.)

6. The synagogue also is a separate entity, though it utilizes the

shul,

or chapel, in the WHHS building for prayer services when school is not in session. (SAF ¶ 9; Tr. 35-36, 65.) Approximately 40 families form the synagogue’s congregation, called Shaarei Tikva. (Tr. 65; Pl.Ex. 78 at 6.) The congregation holds services on Saturday morning, with approximately 10-25 members usually in attendance, but if ten men are present — Orthodox Jews require the presence of ten men to form a

minyan

before public prayer can begin— services are held Friday evening, Saturday afternoon and Sunday morning. (Tr. 35-36.) Services also are held on religious holidays when school is not in session. (Tr. 36, 65; Pl.Ex. 78 at 6.) As Orthodox

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Jews, members of the synagogue do not drive to services. (Tr. 36; Pl.Ex. 78 at 6.)

7.There are four principal buildings on the Property: (1) the split level Wolfson Hall; (2) the three-story Estate House (also referred to as the “Castle”); (3) the Carriage House; and (4) the two-story high school building, built in 1979. (SAF ¶ 8; Pl. Exs. 1, 2,116.)

a. Wolfson Hall was constructed in the 1960s (SAF ¶8), and has undergone no subsequent renovation. (Tr. 87.) As of October 2001, when the Application was filed, Wolfson Hall contained classrooms for one of the pre-kindergarten

(“ganon

”) classes and for kindergarten through grade three, as well as a lunchroom, a science lab for grades six through eight and offices. (Tr. 87.)

b. The Castle was built circa 1897 (SAF ¶ 8) as a summer home and, as of October 2001, had undergone renovation only to convert the bedrooms into classrooms.

5

(Tr. 88-89; Pl.Ex. 65 at 7-8.) The classrooms were irregularly shaped and small — some classrooms were well under 400 square feet. (Tr. 88-89, 175; Pl. Ex. 65 at 8;

infra

¶¶ 61-62.) The windows were unsafe, there was no air conditioning and the electrical system was inadequate. (Tr. 88-89, 175.) In addition, because the Castle was structurally unsound, WDS was forced to have erected wooden columns to shore up the structure, and to have an engineer inspect the building four times per year. (Tr. 89-92, 174-75, 278; Pl.Ex. 29.) As of October 2001, the Castle contained classrooms for

ganon

classes and grades six through eight, in addition to a computer room and administrative offices. (Tr. 88,175.)

c.The Carriage House was built in 1892 to serve as a horse stable. (SAF ¶ 8; Tr. 86.) In 1999, it was renovated to create five classrooms. (Tr. 86; PLEx. 85.) As of May 13, 2003, this renovation was the only meaningful construction performed by WDS on the Property since the construction of Wolfson Hall in the 1960s. (PLEx. 65 at 5-6.) As of October 2001, the Carriage House contained a total of five classrooms used for grades four and five and a small teachers’ room. (Tr. 86.)

8. In addition to these buildings, pursuant to a special permit granted by the ZBA in 1986, WRI constructed a headmaster’s residence on the portion of the Property fronting Orienta Avenue (858 Orienta Avenue). (SAF ¶ 10; Pl.Ex. 92.) After several years, WDS determined that use of the residence for this purpose was no longer necessary (PLEx. 78 at 97-98), and, in March 1995, at WDS’s request, the Village Tax Assessor changed the taxable status of the residence from tax-exempt to taxable; taxes subsequently have been paid to the Village. (SAF ¶ 10; Tr. 730-32, 916; Pl. Ex. 36.) The use of this residence does not, therefore, require a special permit, and the residence can be used for non-school purposes. (Tr. 731-32.)

9. Other uses of the Property, in addition to WDS, WHHS and Shaarei Tikva, include Westchester Summer Day, a summer recreational and Jewish educational program run by WDS. (SAF ¶ 5; Tr. 65-66.) Up to 500 children, ranging in age from three to fifteen, attend Westchester Summer Day. (SAF ¶ 5; Tr. 65-66.) Westchester Summer Day incorporates many Jewish aspects, including prayer, Jewish music and art and Hebrew tutoring. (Tr. 66.)

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10. The Property also is used on Sunday mornings and Tuesday evenings for approximately ten weeks during the spring months for little league softball games for children in kindergarten through sixth grade (“Sunday Sports League”). (Tr. 68.) The Sunday Sports League was established in order to allow Orthodox Jewish children the opportunity to take part in organized, competitive sports; these children cannot participate in the Village-run little league because those games are played on Saturdays, the

Sabbath

for those of the Orthodox Jewish faith. (Tr. 69-70.) The Sunday Sports League is run by a volunteer parent of a WDS student, and the majority of the participants are WDS students. (Tr. 69.) The Sunday Sports League, and the other activities described above, were lawfully taking place on the Property before the ZBA unanimously renewed WDS’s special permit on November 2, 2000. (Tr. 918; Pl.Ex. 3(4) at 1; Pl.Ex. 65 at 4-5; Pl.Ex. 78 at 5-6; Pl. Exs. 85-96.)

11. On very rare occasions, perhaps once a year, a religious life-cycle event, such as a

Bar

or

Bat Mitzvah,

may be held on the Property when the school is not in session. (Tr. 108.)

12. The Mamaroneck Police Department, local firehouses, the Orienta Point Association and other civic organizations have been permitted to hold their annual picnics on the Property. (Tr. 108-09, 824; Pl.Ex. 72 at 72-73.) These organizations have not been charged any rental fees for their use of the Property. (Tr. 108-09, 824; Pl.Ex. 72 at 72-73.)

B.

Character of Orienta Point

13. The Property is located in an area of the Village zoned as an R-20 District.

6

See

Vill. Code § 342-2RA); (Pl.Ex. 3(1) at 2; Pl.Ex. 4 at F-1).

14. Several other large properties border WRI’s tract. Adjacent to the Property is the Orienta Beach Club. (SAF ¶ 6; Tr. 890; Pl.Ex. 116.) Also, two blocks north of the Property, on the northeast corner of Orienta Point, are the Beach Point Club facilities.

7

(Tr. 890-91; Pl.Ex. 116.) In addition, the Hampshire Country Club, an eighteen-hole golf course, is located on Orienta Point; its entrance is to the west of the Property off of Orienta Avenue. (Tr. 494-95; Pl.Ex. 116.) Several boat yards also are situated on the north shore of Orienta Point. (Tr. 891; Pl.Ex. 116.) These boat yards accommodate hundreds of boats, some of which are transported to and from the boat yards on large trailers via the Orienta Point road network. (Tr. 891, 926; Pl.Ex. 116.) Trial testimony of Tilley, an Orienta Point resident and vocal opponent of the Project, and Jackson, a ZBA member who maintains a membership at the Beach Point Club, revealed that these uses generate

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significant traffic, especially on the weekends. (Tr. 1247,1331-32.)

15. Several schools in addition to WDS and WHHS operate in and around Orienta Point. The Liberty Montessori School is located on Orienta Point, on the southeast corner of the Boston Post Road/Orienta Avenue intersection. (Tr. 1182; Pl.Ex. 116.) Mamaroneck High School is on the west side of Boston Post Road, between the Boston Post Road/Orienta Avenue and Boston Post Road/Old Post Road intersections. (Tr. 357,1203; Pl.Ex. 116.)

16. The two main thoroughfares providing access to the Orienta Point neighborhood are Orienta Avenue and Rushmore Avenue. (Pl.Ex. 116.) Orienta Avenue intersects Boston Post Road and continues in a generally southeasterly direction towards the Long Island Sound.

(Id.)

Rushmore Avenue intersects Orien-ta Avenue just east of Boston Post Road and continues east to the Long Island Sound.

(Id.)

17. Orienta Avenue is a two-way, two-lane road with an average pavement width of approximately 20 feet. (SAF ¶7; PI. Ex. 3(8) at 2.) A sidewalk extends along a substantial portion of Orienta Avenue, from Boston Post Road until just before Sylvan Lane. (Tr. 492-93, 1244-45, 1330; Pl.Ex. 116.) . At that point, Orienta Avenue splits into two parts: Orienta Avenue and a service road, the pair separated by a 15-foot wide grassy median. (Tr. 1244-46, 1330-31; Pl.Ex. 116.) The service road continues until just before the WDS driveway on Orienta Avenue. (Pl.Ex. 116.)

18. Rushmore Avenue also is a two-way, two-lane road with an average pavement width of approximately 20 feet. (PI. Ex. 3(8) at 2.) A sidewalk extends along a substantial portion of Rushmore Avenue, from Orienta Avenue to the western boat yard on the north shore of Orienta Point. (Pl.Ex. 116.)

19. In addition to Orienta Avenue and Rushmore Avenue, Old Post Road provides a one-way egress from Orienta Point, intersecting Boston Post Road to the south of the Boston Post Road/Orienta Avenue intersection.

(Id.;

Tr. 1203, 1249.) Cove Road also provides vehicular ingress to and egress from the Orienta Point neighborhood. (Tr. 1205,1249; Pl.Ex. 116.)

20. Vehicular ingress to the Property is provided from a one-way, inbound-only driveway located on Orienta Avenue. (SAF ¶ 7; Pl.Ex. 116.) The main entrance to the Property is approximately eight-tenths of a mile from Boston Post Road. (SAF ¶ 6; Pl.Ex. 116.) Vehicular egress from the Property is provided from a one-way, outbound-only driveway located on Walton Avenue. (SAF ¶ 7; Pl.Ex. 116.) Because Walton Avenue is unpaved between Bloomdale Avenue and Bleeker Avenue, traffic departing the Property generally turns north on Bloomdale Avenue and exits Orienta Point via Rushmore Avenue to Orienta Avenue. (Tr. 238-39, 335-36; Pl.Ex. 3(8) at figs. 3, 4.)

II.

Special Permit Law, Process and History

21. As already noted, the Village Code permits private schools to operate in R-20 Districts subject to granting of a special permit.

See

Vill. Code § 342-21(A)(5). The special permit procedure is set forth in Article X of the Village Code.

Id.

§§ 342-67 to -73.

22. Section 342-68 of Article X provides as follows: “The special uses for which conformance to additional standards is required by this chapter shall be deemed to be permitted uses in their respective districts, subject to the satisfaction of all requirements and standards prescribed by this chapter and the granting of a special permit for such uses.”

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23. The conditions to be satisfied are set forth in § 342-71:

A. That the location and size of the use, the nature and intensity of the operations and traffic involved in or conducted in connection with it, the size of the site in relation to it and the location of the site with respect to the type, arrangement and capacity of streets giving access to it and the hours of operation are such that the proposed use will be in harmony with the appropriate and orderly development of the district in which it is located.

B. That the location, nature and height of the buildings, walls and fences and the nature and extent of the landscaping and screening on the site, as existing or proposed, are such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings.

C. That operations in connection with the proposed use will not be objectionable by reason of noise, fumes, smoke, dust, vibration, glare, intensity or flashing of lights.

D. That the parking areas to be provided will be of adequate capacity for the particular use, properly located and suitably screened from adjoining residential uses and that the entrance and exit drives shall be laid out so as to achieve maximum safety.

E. That, where they are applicable, the standards and requirements established or approved by the Village Engineer have been satisfactorily met as evidenced by his certification and that all necessary approvals of any other governmental agency or board have been or will be obtained by the applicant.

24. If the ZBA finds that “all appropriate conditions have been satisfactorily met, it shall grant [an application for a special permit] and approve the proposed special use, subject to such terms as are prescribed in this chapter or as the Board may impose; otherwise it shall deny the application.”

Id.

§ 342-72.

25. WDS operates on the Property pursuant to a special permit granted by the ZBA in accordance with this procedure. (SAF ¶ 11; Pl.Ex. 86.) The special permit is subject to renewal every three years, at which time the ZBA may impose reasonable conditions to mitigate any negative impacts related to the use of the Property. (SAF ¶ 11; Tr. 733-34, 1292; Pl.Ex. 86.)

26. As 58-year residents of Orienta Point, WRI and WDS have lengthy histories before the ZBA. In 1974 and 1976, WRI applied for and was granted special permits for the installation of two tennis courts and a handball court, respectively. (Pl.Exs. 95, 96.) WRI received a special permit in 1978 to construct an additional building on its campus to house WHHS (Pl.Ex. 94), with another special permit granted six years later to permit the addition of a second story to that structure. (Pl.Ex. 93.) WRI received permission for the construction of a headmaster’s residence two years later. (Pl.Ex. 92;

see supra

¶ 8.) That same year, WRI received a special permit, after the fact, for the construction of an aboveground swimming pool (Pl.Ex. 91); WDS applied for and received special permits for installation of swimming pools in 1991 and 1997. (PI. Exs. 84, 88, 89.) WRI applied for and was granted a special permit to grade and plant an athletic field in 1987. (Pl.Ex. 90.) It received another special permit in 1991 to construct a partial, second-floor addition. (Pl.Ex. 89.) Lastly, the Carriage House renovation special permit was granted to WDS in 1999.

(See supra

¶ 7.c.)

27. On November 2, 2000, immediately following the year in which student enroll

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ment peaked at WDS (and the Property, including WDS and WHHS), the ZBA unanimously renewed the special permit for a period of three years and merged into that special permit all prior special permits granted by the ZBA with respect to the Property. (SAF ¶ 11; PI. Exs. 32, 34, 86.) In doing so, the ZBA made the following specific findings of fact:

1. All conditions of the special permit have been complied with[;]

2. No complaints have been made to the Building Department, Police Department, or any other department or agency of the Village in connection with the operation of the sehool[; and]

3. No violations have been noticed or cited in connection with the operation of the school.

(Pl.Ex. 86 at 1.) The Village has not subsequently issued any violations against WDS. (Tr. 901.)

28. According to Hammerman’s statements to the ZBA at its November 1, 2001 hearing on the Application, WDS informed the ZBA at the time of its application for the Carriage House renovation in 1999

(see supra

¶ 7.c.), that that application represented only the first stage of part of a larger expansion project. (Pl.Ex. 65 at 6.) The Application at issue in this action constitutes that envisioned “grander project.”

(Id.)

III.

WDS’s Existing Facilities

29. There was substantial testimony at trial regarding the inadequacies of the WDS facilities.

8

Plaintiff alleges that these inadequacies render WDS unable to provide an adequate and effective dual curriculum Judaic and general studies education consistent with the mission and tenets of modern Orthodox Judaism.

30. For example, Rabbi Einzig, the WDS headmaster, testified:

The facilities are not adequate. I am familiar with the schools] that I have been at before, and we had much more and much bigger space for our children, and we are — we do not have the correct amount of space right now. It inhibits really the process of true education.

(Tr. 32.)

31. Hammerman likewise testified that “[t]here is a deprivation of space and adequate facilities for the teachers to be able to instruct their students in the Judaic studies curriculum.” (Tr. 224.) Although she acknowledged on cross-examination that “[a]ll beliefs can be practiced,” Ham-merman qualified it by noting that the lack of space prevented the teachers from doing their jobs “adequately.”

(Id.)

32. Goldman, WDS’s Executive Director, testified that “[the facilities] were inadequate then [1999/2000], they are inadequate today.” (Tr. 129.) This conclusion was shared by WDS’s architect. Davidson, who has specialized in school design for over 20 years, stated “the facilities currently in use [at WDS] are inadequate even for the current student body.” (Defs. Ex. O at KGD 27; Tr. 1008, 1011, 1020.)

33. As a result, WDS has received complaints from parents about the inadequacy of its facilities. (Tr. 138;

see also

Tr. 94 (noting parental displeasure at large student-to-class ratio

(see infra

¶ 34.a.)); Tr. 795-96 (indicating parents sending children to other competitive-area schools with more adequate facilities).)

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34. WDS’s existing facilities are inadequate in several critical respects including, at least, the following:

a. "WDS lacks sufficient classroom space to accommodate its dual curriculum Judaic and general studies education. (Tr. 93-94, 112, 172.) The lack of classroom space has forced “WDS to increase class sizes to the detriment of the students’ education; Judaic studies are traditionally and more effectively taught in smaller class sizes. (Tr. 93-94, 394-98, 409-10, 419, 428.) The impact of the lack of classroom space is exacerbated by the fact that WDS’s dual curriculum requires that it have significantly more classroom space than schools that do not have a dual curriculum. (Tr. 166, 394-95, 409, 419, 427.) The need for extra space arises from,

inter alia,

the greater number of subjects taught and the number of faculty required to teach those subjects. (Tr. 394-98, 409-10, 419, 428.) WDS has been forced to decommission both its library and art room in order to use them as classroom space. (Tr. 180.)

b. "WDS does not have adequate space for a learning center or for small-group instructional rooms to provide, for both Judaic and general studies, (1) remedial instruction to children with special needs; (2) “challenge” instruction to more gifted students; and (3) differentiated instruction,

i.e.,

teaching children based on how each child best learns, whether, for example, through auditory, visual or kinesthetic means. (Tr. 30-32, 82, 93, 172-73, 459-61, 795.) Hammerman testified that WDS has been forced to use closets as educational spaces:

I was in the school on a frequent basis, and I saw that what had been used as closets for books or closets for supplies were now being turned into educational spaces, which were suboptimal spaces. They had no windows, they were small, and they had education going on in there, because there were no other spaces available to be used.

(Tr. 179-80.) Rubenovitch-Fish, WDS’s Assistant Principal, testified that the small-group instructional rooms are in fact “[cjlosets,” and

[t]he former bookroom is where one of our teachers pulls some of the challenge students in one of the buildings. And the other one, she just goes into the classroom, because we don’t have even a closet. There was a bookroom where they put the air-conditioner so we can breathe, and it’s far from conducive to learning.

(Tr. 461.) Rubenovitch-Fish further testified that WDS has even been forced to engage in small-group instruction in the hallways:

We have enormous needs of learning center children, and we mentioned the challenge teacher, and we have nowhere for these children to go. And sometimes Mrs. Katzeff just pulls up five or six chairs into the hallway with her challenge group, and people are coming and going. And fortunately they can focus and attend, they are children of greater ability, but it’s, it’s far from ideal. It’s a very difficult situation to teach like that.

(Tr. 459-60.) The learning center and small-group instructional rooms are particularly important at a dual curriculum school such as WDS due to the fact that, among other things, numerous children require remedial or challenge education in Judaic studies but there is less classroom time available each day to devote to instruction and remedial education in each of the Judaic and general studies subjects. (Tr. 394, 396-98, 409-10, 419, 428, 455-56.)

c.WDS does not have a large room to use for,

inter alia,

religious instruction, group prayer and Jewish performances and assemblies. (Tr. 33, 93, 172.) Rabbi

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Einzig emphasized the lack of adequate space for WDS to hold “weekly assemblies where we will be able to speak about the weekly portion in the Torah, we call it,

Parshat Shavua

.... ” (Tr. 34;

see also

Tr. 52.) For larger gatherings, WDS is forced to use the lunchroom, which itself cannot accommodate even half of the School’s enrolled students. (Tr. 33, 93.)

9

Moreover, when the lunchroom is required for a special activity that normally would be held in an assembly room, such as a book fair, students are forced to eat in their classrooms. (Tr. 94-95.) The lack of an assembly room also means that the younger students have nowhere to recreate during inclement weather. (Tr. 96.)

d. WDS does not have a library — for either English or Judaic studies.

10

(Tr. 93-94, 180.) WDS was forced to decommission its library and use the space for classroom instruction.

(See supra

¶ 34.a.)

e. WDS lacks an art room. (Tr. 93-94, 172, 457-58.) The art room was moved to a makeshift space in Wolfson Hall before being converted to classroom space. (Tr. 180; Defs. Ex. TT at 2.) Ever since; WDS has wheeled art supplies from classroom to classroom. (Tr. 180.) Hammerman testified:

[T]he materials are cumbersome. When children make things, they need a place to hang them out to dry. There is no place for them to do that. It takes up an awful lot of time to wheel the things in and out. The art teacher has to come into the classroom, which displaces the regular classroom teacher,

et cetera.

It’s just not a good situation.

(Tr. 180-81.)

f. WDS has no music room. (Tr. 100, 172, 457-58.) The lack of any music room precludes WDS from,

inter alia,

incorporating instruments into its music program. (Tr. 458.) Rubenovitch-Fish, an educator for over 30 years, testified:

I have never been in a school where we didn’t have a music room where the children can go — soundproofing or no soundproofing — a separate room so they could do beyond just vocal music, so they can get into instrumentation.

Music largely involves movement as well. There is no way of doing that. We simply have the vocal, the singing. That’s the only piece of our music program that we can do in the confines of our rooms.

(Id.)

g. WDS’s existing facilities do not allow for age-appropriate grouping of students. (Tr. 1015.) Davidson explained:

One of the issues ... of the day school was that they were not able to cluster facilities for each age level together. They were spread out and that created obvious functional and educational impediments to offering their programs. Ideally, in any school environment, you want to group age levels together.

(Tr. 1015;

see also

Defs. Ex. O at KGD 27.) For example, while some of the

ga-non

classrooms are located in the Castle, other

ganon

classrooms are located in Wolfson Hall.

11

(Tr. 87-88, 175-76.)

*493

WDS’s inability to cluster students into age-appropriate groups results in, among other things, the lack of appropriate social separation between the younger and older students, which makes it more difficult to maintain order and discipline. (Tr. 98-99, 176, 1015.) More importantly, the time required for the students to travel between buildings for their different classes and activities results in the loss of valuable instruction time (Tr. 100-01, 213), a concern of crucial significance where the School must teach both Judaic and general studies. (Tr. 455-57.) Instruction time is therefore at a premium at WDS relative to non-dual curriculum schools.

12

(Id.)

Rube-novitch-Fish explained that in order to cover both its Judaic studies curriculum and meet the New York State standards for general studies curriculum, WDS “compact[s]”:

[I]n order to fit into one whole day, we have a long day. We start at 8:00 in the morning and go till 4:00. But we have to compact so that it flows smoothly and seamlessly throughout the day.

Time is our enemy. We have to fit an awful lot into — to cover the same material that the other schools in Westches-ter County cover.

(Tr. 455-56.)

h. WDS also lacks facilities for speech therapy, occupational therapy and psychological counseling. (Tr. 82, 93, 462-63.) Rubenovitch-Fish explained that some of these services are “squeezed” into her office, which serves as a “combined office, bookroom, storeroom [and] conference room”; it is “not the best environment for something where they need to do either any form of assessment, or speech pathology needs great acoustics and sounds to be heard.” (Tr. 462.) More importantly, because her office is located one floor below bathrooms, it proves a poor learning environment for students with sensory sensitivity. (Tr. 462-63.)

i. WDS lacks computer and science labs that can properly accommodate all of its students. (Tr. 96, 172.) The small computer room in Wolfson Hall is able to service only students in kindergarten through grade three. (Tr. 96.) The single science lab can accommodate only those students in grades six through eight. (Tr. 461-62.) Moreover,, the science lab is not located within a reasonable distance of those middle school students who actually use the lab. (Tr. 96-97,172.)

35. Rabbi Einzig testified that the students’ education “is being compromised in the facility that we are now abiding in” (Tr. 47), and that the existing facilities “inhibitf ] the process of true education.” (Tr. 32.) Hammerman testified: “I know that the teachers of Judaic studies are hampered with the facilities they have, and they cannot adequately teach the religion in the facilities that they have .... The teachers cannot adequately teach what they need to teach to accomplish the mission of the school.” (Tr. 264-65;

see also

Tr. 224.) Goldman echoed these thoughts: “[T]he facilities are] inadequate. It hinders us from performing what we believe is our duty to teach Jewish values, Torah

*494

values, properly in this school.” (Tr. 131) Rubenovitch-Fish testified that WDS “do[es]n’t have enough room to do anything properly.” (Tr. 457.) Dr. Schick, an expert in Jewish education

13

, also opined that modern Orthodox Jewish day schools are hindered in their ability to teach Judaic studies when, as here, they lack adequate facilities. (Tr. 397-98 (commenting on need for “a significant number of classrooms” and that lack of proper facilities will dissuade attendance).)

36. The inadequacy of WDS’s existing facilities also significantly interferes with and has had a chilling effect on its ability to attract and retain students.

14

(Tr. 99-100, 1020.) The evidence showed that there is a competitive interstate market for Jewish day schools in Westchester County, as part of an even larger inter: state market for private education generally. (Tr. 405-06;

see also

795-96.) In fact, Jewish day schools are growing in population across both New York State and the United States. (Tr. 398-400; Pl.Ex. 107 at 1, 25.) The modern Orthodox Jewish community in Westchester also is growing. (Tr. 260; 796'.)

37. Despite the growth of the modern Orthodox Jewish community in Westches-ter, enrollment at WDS has been declining since 1999. (Pl.Ex. 32.) Total student enrollment at WDS for the academic years 1994 through 2005 is as follows:

1994 — 395 1998- — 482 2002 — 475

1995 — 403 1999 — 502 2003 — 463

1996 — 413 2000 — 486 2004-^29

1997 — 458 2001^161 2005^14

(SAF ¶ 4; Pl.Ex. 32.)

38. The decline in enrollment at WDS since 2001 has been caused, at least in part, by defendants’ actions, which have precluded WDS from remedying the inadequacies of its facilities and constructing facilities available at other Orthodox Jewish day schools. (Tr. 99-100, 176-78, 405-06,1020.) There is no evidence suggesting WDS can staunch this downward trend without constructing facilities more adequately geared toward providing its dual curriculum. Obviously, this continued loss of students (and faculty) will undercut the objectives of the mission and ultimately imperil the School’s viability.

39. In addition, WDS has shown that the inadequacy of its existing facilities has interfered with its ability to recruit qualified teachers for both Judaic and general studies. (Tr. 99-100.)

TV.

The WDS Judaic and General Studies Curriculum

40. WDS is a co-educational school providing a dual curriculum of Judaic and

*495

general studies.

15

(SAF ¶ 2; Tr. 21, 28, 70, 169-70.) WDS is an elementary/middle school with

ganon,

kindergarten and grades one through eight. (SAF ¶ 2; Tr. 21,169-70.)

41. WDS’s mission is to provide its students with an adequate and effective dual curriculum education and for its students to become observant practicing members of the Orthodox Jewish community, proud of and knowledgeable about their heritage both as Jews and as Americans. (Tr. 54, 70-71,169-70, 414; Pl.Ex. 14.) WDS’s bylaws provide, in relevant part, as follows:

The objects and purposes of the School shall be to establish, maintain and conduct a school or schools with curriculum, teaching personnel, and methods to afford students attending the school: nonsecular education including but not limited to such subjects as biblical studies, Hebrew language and literature, and Jewish history and religion, and conducted as an orthodox Yeshiva with a view to propagating and inculcating the viewpoint of traditional and established Judaism; and secular education which shall seek to adopt and employ an enriched and progressive curriculum, which shall conform to the highest standards of modern American education.

(PLEx. 14 at 1.)

42. The dual curriculum at WDS integrates both Judaic and general studies such that religious education and practice permeates the students’ education in all grades.

(E.g.,

Tr. 21, 43^44, 122, 191; Defs. Ex. G at 3.) For example, Rabbi Einzig testified:

Every part of [the students’] day is spent studying religion ... [fjrom when the students come in the morning until they leave, they are totally absorbed with their religious education ... — religion permeates throughout the school day.

Not only is religion prayers, but religion incorporates all of the studies of the doctrines of the religion. So students will learn their — for example, studying social studies or science or math, there will be religious and Judaic concepts that come into play in their education.

(Tr. 21-22.) He added: “[R]eligion plays a part in our daily whole, and throughout the day we are involved in general things and holy things, and they go back and forth.” (Tr. 51.)

43.In

ganon

and kindergarten, there is no division between Judaic and general studies. (Tr. 55, 75-76, 435-36, 443.) Rather, the program is totally integrated and the children receive simultaneous instruction in both Judaic and general studies. (Tr. 75-76, 435-36.) The entire program in

ganon

and kindergarten revolves around Jewish holidays, Jewish festivals, the Torah and the Hebrew language. (Tr. 436-37, 440-41; Pl. Exs. 7, 9.) Goldman explained that, as concerned the

ganon

and kindergarten program:

There is no division [between Judaic and general studies]. It’s totally integrated. In other words, in the morning, if they’re going to discuss the weather outside, the weather is going to be discussed both with Hebrew words and English words. They are also going to be

*496

talking about creation, and they will probably bring forth things from the Bible on God’s creation and how it affects the weather.

When they learn about numbers in the nursery and the kindergarten, they will be learning it both in the Hebrew and in the English, and usually it will be integrated in various stories from the Bible. So there is absolutely no division. It can be done at any time of the day, and there really is not a separate teacher for the Hebrew and for the English. It’s the same person who does both.

(Tr. 76.) Rubenovitch-Fish offered similar testimony:

We blend everything together as much as we can, we mesh it together. So that everything we do from the Torah, from our expectations and our Jewish customs and our holidays and our festivals, we incorporate into the teachings with the New York State program in mind, and that’s how we blend it together.

(Tr. 443.)

44. In grades one through eight, students spend roughly half of the school day on Judaic studies and half of the school day on general studies. (Tr. 21, 72-73, 122-23.) Judaic studies consists of Hebrew language, Bible, prophets, Talmud, Mishnah, Jewish history, law and ritual practice and Jewish culture. (Tr. 28-29; Pl.Ex. 10.) In addition, like the younger students, students in grades one through eight also celebrate the Jewish holidays, practices and customs as part of the dual curriculum. (Tr. 29, 33-34, 95, 445-48.) At least half of the teachers at WDS are specifically assigned to Judaic studies. (Tr. 468.)

45. The general studies curriculum includes all of the subjects mandated by the State, and demanded by parents, such as math, social science, history, science and English. (Tr. 28; Pl.Ex. 11.) However, virtually all of the general studies courses are permeated with religious aspects and the entire faculty (including general studies teachers) cooperate on various Judaic and Jewish-themed activities.

{E.g.,

Tr. 21-22, 445-55.)

46. Religious instruction is integrated, to varying degrees, in general studies classes such as language arts, social studies, math and science, as well as music and art.

(E.g.,

Tr. 45, 123, 445-50.) For example, in the language arts program there is a focus on Jewish history and culture. (Tr. 447-48.)

47. Daily prayer also is an important and essential part of the curriculum for all students at 'WDS. (Tr. 21-22, 26, 116.) Students in

ganon

through fifth grade pray every morning in their classrooms. (Tr. 78-79.) The fourth and fifth grade students pray every morning and afternoon in their classrooms. (Tr. 79.) The sixth through eighth grade students also have daily morning and afternoon prayer in their classrooms or in the

shul.

16

(Id.)

However, prayers are not limited to morning and afternoon services. For example, every time a student has a meal or eats a snack, they recite prayers both before and after they eat. (Tr. 21-22.) All of these prayers are integrated into the school day and are recited whether the student is in a Judaic or general studies course. (Tr. 23-24, 77.)

48. WDS also “maintains fixed standards of observance of the laws of

hash-rut,”

Jewish dietary law, as required by their faith. (Pl.Ex. 13 at 5;

see

Tr. 68.) Thus, unlike public or secular private schools, WDS has two separate kitchens:

*497

one for meat and one for dairy. (Tr. 67-68; Defs. Ex. TTT at A2.1, A2.10.)

49. Students at WDS also adhere throughout the day to the dress code dictated by the Torah. (Tr. 27; Pl.Ex. 13 at 3.) Rabbi Einzig explained the basis underlying the dress code: “It dictates, it says in the Torah that — in the Bible — that one should dress modestly and to wear these garments

[kippots

and

tzizits

] to remember that God is above us and God is around us, so that is very much a part of our religion.” (Tr. 27.)

50. The integration of Judaic and general studies at WDS is consistent with the expert testimony offered by Dr. Schick. Dr. Schick testified as to the religious functions of Jewish day schools:

The Jewish day school obviously has these two purposes, the general educational purpose and the general socialization purpose. There are two other very important functions for Jewish day schools.

Number one, the religious education function, which parallels the general education function, that is they impart certain knowledge in Jewish subjects; the idea being, the hope being that this information will serve very well as these children reach adult life, and they will be participating members in the Jewish community.

The parallel function is a Jewish socialization function, which is to teach children certain modes of behavior which fit into the Jewish faith and carry out various traditions, such as going to synagogue, praying; not merely praying in the sense of being able to read, but to understand and have certain feelings about their community and the commitments to their community.

(Tr. 384.)

51. Although the Court recognizes that there is no command in the Torah that Orthodox Jewish children attend an Orthodox Jewish day school, the Court finds that a religious education is mandated by modern Orthodox Judaism — there is a commandment to teach children the Torah.

(E.g.,

Tr. 262-63, 415, 793.) As Dr. Schick explained:

[Tjhere is a very powerful religious obligation in Jewish life to teach children religious studies, as part of a prayer that is recited three times a day by many— by most Orthodox Jews, and so, the practical way of fulfilling that key central religious obligation is through the medium of a religious school.

(Tr. 415.)

52. The vast majority of modern Orthodox Jewish parents satisfy this “key central religious obligation” by sending their children to Jewish day schools, such as WDS. (Tr. 400-01, 415-16.) Dr. Schick opined that for modern Orthodox Jews, enrolling their children in a dual curriculum Jewish day school is “virtually mandatory.” (Tr. 400-01.) Rabbi Einzig confirmed this opinion (Tr. 50); Turek, a parent of two WDS students, echoed those sentiments (Tr. 793), as did Ham-merman, a mother of four WDS graduates. (Tr. 262-63, 269-70.)

53. Tuition at WDS ranges between approximately $11,000 and $17,000 per student per year. (Tr. 83.) Hammerman testified that she pays this tuition to send her children to WDS, rather than a public school or secular private school, for the Jewish education and socialization that is provided. (Tr. 269-70.) Turek stated that he sends his children to WDS because

I as an orthodox Jew require the duality of the educational program that’s offered there. To me and my wife it is critically important that they have a strong grounding in Judaic studies. Equally, I should add that there is an

*498

obligation which is clearly cited in the Torah, the Talmud, the old law, for a father to pass onto his son and daughter as the case may be the rich culture, traditions and values of the Jewish religion.

(Tr. 793.) Based on these findings, it is clear that WDS would not exist without its religious mission.

54. The Court finds that WDS’s existing facilities, in whole and in all of their constituent parts, are used for religious education and

practice

— i.e., devoted to religious purposes. While it is possible that a classroom may be used for a general studies course not infused with religion at a particular time, the uses to which a particular classroom are put will change over time and at some point will be devoted to religious purposes. (Tr. 165-66, 186, 394.)

V.

The Expansion Project

55. In 1998, WDS retained architectural firm KGD to assist it in addressing the inadequacies of its existing facilities in a manner that could accommodate its dual curriculum. (Tr. 1007-08.) KGD is an architectural, engineering and professional corporation established in 1994 from the predecessor firm of Kaeyer, Parker, Garment & Fleagle. (Tr. 1004-05.) KGD and its predecessor have been practicing in the lower Hudson Valley with an emphasis on educational architecture for more than 50 years. (Tr. 1005.) KGD has performed construction and renovation work for all types of schools, including public schools, public special education schools, private schools, private special education schools, community colleges, private colleges and graduate schools. (Tr. 1005-06.) KGD worked with WDS to renovate the Carriage House for classroom use in 1999

(see supra

¶ 7.c.), and continued to work with WDS toward a more permanent solution that adequately would address its short term and long term needs. (Tr. 1008-10.)

56. As part of the planning process, WDS also retained DTS, a well-established land planning, engineering, project management and environmental consulting firm based in White Plains. (Tr. 273, 655.) DTS has been involved with more than 500 projects since it was founded in 1972, including many related to school construction. (Tr. 274.) DTS was retained to provide land planning, site engineering and environmental services. (Tr. 273, 275, 475.) DTS also was retained to assist WDS in seeking and obtaining any necessary approvals for the proposed land use, an area in which DTS has substantial experience and expertise. (Tr. 275.) DTS worked with KGD and also retained and coordinated the work of other professionals. (Tr. 276, 475-76.) WDS’s contact at DTS was Michael Divney, a licensed professional engineer, certified planner and partner of DTS who has been with the firm since its founding more than 30 years ago. (Tr. 273-74.)

17

57. WDS also retained James Staudt, Esq., a land use attorney at the firm McCullough, Goldberg & Staudt. (Tr. 724-25.)

58. Based on a comprehensive assessment of WDS’s dual curriculum and educational needs, WDS and KGD determined the facilities required by WDS; which facilities could be incorporated into existing structures

(i.e.,

the Castle, Carriage House

*499

and Wolfson Hall); and which facilities would have to be incorporated into a new building. (Tr. 1016-17.) Russell Davidson, President and Managing Partner of KGD,

18

who has specialized in school design for more than 20 years (Tr. 1004-05), explained the design process for WDS:

[A]s a continuation of the initial planning study, we worked with the school to come up with a set of classrooms that were needed to serve the three different age level groupings and the dual language curriculum, as well as providing for the special subjects, art and music, the small group spaces that are needed to support the grade level classrooms, the common areas that were missing, like there was no library. And we came up with this list which we commonly call a facilities program and we started to see how — which spaces could be adequately accommodated in the existing buddings and came up with a conceptual approach for a new building to provide the balance of the spaces.

(Tr. 1009-10.) Davidson further explained the unique considerations in the ease of WDS:

[I]t’s not even appropriate to compare it to public schools,

per se,

because of its dual language curriculum, because of the age level groupings, because [of] the fact it contains a nursery school and worship spaces, as well as a religious library, things no other public schools contain. Frankly, we felt and still feel that without this expansion, the day school is going to, you know, will not be competitive in its environment and it will limit its abilities to draw students.

(Tr. 1020;

see also

Defs. Ex. DDDD at 1, 2.) '

59. Based on the comprehensive assessment performed with KGD, and in order to remedy the inadequacies of its existing facilities, WDS decided to renovate Wolfson Hall and the Castle and to construct a new building, Gordon Hall. This decision was, in part, made in response to competition from other area day schools. (Tr. 34, 259, 793, 1020; Pl.Ex. 62 at 8.) Gordon Hall is to be approximately 44,000 square feet in size, containing 25 classrooms and a multi-purpose room. (SAF ¶ 16; Tr. 184, 225;

see generally

Pl.Ex. 3(4), (6); Pl.Ex. 4; Defs. Ex. TTT at A2.5-2.9.) The proposed Gordon Hall will provide room for libraries, computer rooms, resource rooms, science labs, classrooms and other facilities, such as are provided in nonreligious private schools and public schools. (Tr. 37, 41, 103, 172-73, 393-94, 427, 794; Pl. Exs. 3(4), 111.) The Project calls for WDS to decommission all 13 classrooms in the Castle in order to use them for other required purposes, such as a learning center, library space, music and art rooms and rooms for speech therapy, occupational therapy and psychological counseling. (SAF ¶ 17; Tr. 185; Pl.Ex. 3(4) at 2.)

60. The proposed 44,000 gross square foot area of Gordon Hall was not based on a calculation of gross square footage per student.

19

(Tr. 1017.) As Davidson ex

*500

plained at trial, “Gross square feet per student is not a tool that is used to determine the size of school buildings. It’s only sometimes used as a benchmark after a program based design is complete to test your design to see if you’re within certain reasonable ranges.”

(Id.)

Davidson testified before the ZBA and at trial that WDS ended up with a figure of 169 GSF per student. (Pl.Ex. 79 at 6; Tr. 1054-55.) This number falls within a reasonable range.

61. A 2001 AIA schedule of typical classroom sizes indicates gross square footage per student of 108 for elementary school students, 156 for middle school students and 175 for high school students. (Pl.Ex. 64 at 28.) In addition, an industry text on elementary and secondary school design finds that “[c]lassroom sizes typically range from 750 to 1,000 NSF.”

(Id.

at 29.) The New York State minimum standard for an elementary school classroom is 770 NSF, based on an occupancy of 27 students.

(Id.

at 28.) However, this text points out that “[t]he quantity of specialized program areas is determined by the offerings at the school and varies from school to school.”

(Id.

at 29.)

62. Davidson testified that a majority of the classrooms in the existing buildings fell well below the New York State minimum standards, a problem that the Project was designed to address. (Tr. 1021-22; Pl.Ex. 26.) The 169 GSF per student figure was consistent with three public schools — none of which have dual language programs — upon which Davidson’s firm was working at the time of the Application. (Pl.Ex. 79 at 6-7.) Davidson also noted that the Harvey School, a private school located in a residential neighborhood in the Town of Bedford, New York, had added a 28,000 GSF art facility (with 1,000 NSF rooms) to its larger 100,000 GSF structure.

(Id.

at 26, 28.) In addition, Davidson indicated his firm had done work on the New York State School for the Deaf, a private school in Greenburgh, New York, that has classroom sizes of 770 NSF to 900 NSF.

(Id.

at 26.)

63. Presently, the Carriage House is 12,252 square feet, the Castle is 21,302 square feet, Wolfson Hall is 30,492 square feet, WHHS is 34,993 square feet and the connector between the Castle and Wolfson Hall is 1,242 square feet. (Pl.Ex. 120.) Multiplying 169 GSF per student by a maximum potential WDS enrollment of 591 students yields 99,879 GSF. (Tr. 1082.) Subtracting 56,000 square feet, the approximate amount of existing space devoted exclusively to WDS use,

ie.,

not including the full square footage of Wolfson Hall, leaves 44,000 square feet.

(Id.)

64. Defendants argue that 65,000 square feet should be subtracted to reflect the use of space shared with WHHS in Wolfson Hall. (Tr. 1082-85.) The shared facilities include the gymnasium, the synagogue, the cafeteria and the science rooms. (Tr. 1091.) Davidson objected to using that figure, however, because it represented an approximation that does not accurately reflect how the inclusion of shared space would affect the gross square footage per student. (Tr. 1084.) Moreover, Davidson noted that

in older buildings, especially in the northeast, there is much more gross square footage related to net square footage than in other areas because of the thickness of walls, because of the amount of insulation in buildings. And particularly at the day school, the [C]ar-

*501

riage [H]ouse [and] the [C]astle building have a lot of unusable square footage included in the gross category because of the age of their construction, and also ... because of the long connector ... between Wolfson and the [C]astle building.

(Tr. 1018.) This is consistent with the industry text, which states: “Additions to existing schools tend to be less efficient; furthermore, the planning of the original school probably did not consider current teaching methodologies and technology.” (Pl.Ex. 64 at 20.)

65. Athough, with the addition of Gordon Hall, WDS could accommodate additional students, Gordon Hall was specifically designed to serve the needs of the existing student population. (Tr. at 240-41, 1101, 1049-52; Defs. Ex. TT at 3.) Davidson testified that “[t]he proposed building addition was primarily a solution to the shortcomings of the educational facilities for the current enrollment.” (Tr. 1011.)

66. The renovations to Wolfson Hall and the Castle will include making both buildings handicap accessible, creating a second science laboratory, retreading staircases, retiling bathroom floors, recar-peting rooms, rewiring for computer and network capability, and installing new doors, light fixtures and audio-visual equipment. (SAF ¶ 17; Pl.Ex. 3(4) at 2-3.)

67. The Project will rectify the inadequacies of WDS’s existing facilities in several ways including, at least, the following:

a.The construction of Gordon Hall will result in a net increase to WDS of 12 classrooms, to be used by students in

ga-non

through grade two, grade four and grade five. (Tr. 185, 229; Pl.Ex. 111; Defs. Ex. TTT at A.2.1-2.2, A.2.5-2.8.) The classrooms in Gordon Hall will be used to teach Judaic and general studies, as well as for prayer services. (Tr. 52-53, 165.) Significantly, as noted above

(see supra

¶ 43), in

ganon

and kindergarten there is no division between Judaic and general studies — they are taught in the classroom simultaneously. (Tr. 55, 75-76, 435-36, 443.) However, even where classrooms are used by elementary and middle school students for general studies, those general studies will integrate varying degrees of religious instruction.

(See supra

¶¶ 44-47; Tr. 21-22, 29, 445-50.) In addition, while the classrooms may be used for general studies one year, the following year the same classrooms may be used for Judaic studies. (Tr. 165-66,186, 393-94.)

b. The Project will provide WDS with a learning center and small-group instructional rooms to be used for remedial, challenge and differentiated instruction in both Judaic and general studies. (Tr. 103; Pl. Ex. 111; Defs. Ex. TTT at A2.1-2.2.)

c. A multi-purpose room will be constructed in Gordon Hall. (Tr. 37, 103, 225; Defs. Ex. TTT at A2.1, A2.6.) The multipurpose room will be used for,

inter alia,

religious instruction, group prayer and Jewish performances and assemblies. (Tr. 33-34, 52, 117, 165-66, 174, 186.) It will also be available for the younger students to eat lunch, be used for school plays and allow the

ganon

and kindergarten students a place to recreate during inclement weather. (Tr. 33, 96,116-17, 172.)

d. The Project will provide WDS with an art room. (Tr. 103, 167, 184, 1010; Defs. Ex. TTT at A2.2, A2.8.)

e. The Project also will provide WDS with a music room. (Tr. 103, 167, 184, 1010; Defs. Ex. TTT at A2.2, A2.8.)

f. The Project enables WDS to properly cluster students in an age appropriate manner. For example, Gordon Hall will contain classrooms for

ganon

through grade two (first floor) and grades four and

*502

five (second floor). (Tr. 1016; Pl.Ex. 111; Defs. Ex. TTT at A2.1, A2.5-2.6.) Grade three will be in the Carriage House. (Defs. Ex. TTT at A2.1, A2.5.) The middle school students (grades six through eight), will be in Wolfson Hall. (Defs. Ex. TTT at A2.1, A2.10.) Shared facilities, such as the learning center,

beit midrash

and music and art rooms will be centrally located in the renovated Castle. (Defs. Ex. TTT at A2.1-2.2, A2.6, A2.8.) The Project also calls for the administrative offices to be conveniently located in the Carriage House, Castle and Gordon Hall. (Tr. 217; Defs. Ex. TTT at A2.1-2.3, A2.5, A2.7-2.8.)

g. The Project includes resource rooms that can be used for speech therapy, occupational therapy and psychological counseling. (Tr. 184; Defs. Ex. TTT at A2.1-2.2, A2.5, A2.8.)

h. The Project includes the addition of a computer lab and two science labs. (Defs. Ex. TTT at A2.1, A2.6, A2.10.)

68.Based on these facts, as well as those discussed above, the Court finds that Gordon Hall and the other facilities renovated as part of the Project, in whole and in all of their constituent parts, will be used for religious education and practice— ie., devoted to religious purposes. For example, that the multi-purpose room may at times be used for non-religious assemblies does not obviate the fact that it also will be used primarily and/or extensively for religious assemblies, which WDS otherwise could not hold. Likewise, while it is possible that a classroom in Gordon Hall may be used for a general studies course not infused with religion at a particular time, the uses to which a particular classroom are put will change over time. (Tr. 165-66, 186, 393-94.) Given that religion permeates the dual curriculum (see

supra

Section IV.), all of the classrooms would be expected at some point in time to be devoted to religious purposes. The Project is necessary to rectify the inadequacies in WDS’s facilities and enable WDS to provide a Judaic and general studies education to its students consistent with its mission and the tenets of modern Orthodox Judaism.

69. As part of the planning process, WDS considered various locations on the Property for Gordon Hall. (E.g., Tr. 188-89, 371, 486, 1025.) For example, WDS considered building Gordon Hall between Wolfson Hall and the Castle. (Tr. 188, 372, 1025.) However, that area was determined not to be viable because it was wetland and part of the 100-year floodplain. (Tr. 372, 491, 1025.) WDS also considered locations on the other side of the Property’s internal driveway. (Tr. 691.) Most of the baseball field, however, also is part of the 100-year floodplain. (Tr. 491.) In any event, locating Gordon Hall on the other side of the internal driveway would require students (including young children) to cross the driveway to access the existing buildings, which poses significant safety issues; it is, therefore, not a viable option. (Tr. 188-89, 212.)

70. Ultimately, it was determined by WDS, in consultation with its experts, that the only logical and viable location for Gordon Hall was between the Castle and the Carriage House. (Tr. 212, 486-87, 1024-25.) The reasons for this are several:

a. Given that the existing structures would constitute approximately 60% of the school’s space after the construction of Gordon Hall, the most functional place for Gordon Hall was as close to these buildings' as possible. (Tr. 1024-25.) This would facilitate the age-appropriate grouping of students, while ensuring that students of all grades could access the shared facilities in the Castle without leaving the building. (Tr. 1015-17, 1024-25, 1062-63; Pl.Ex. 28.)

*503

b. The creation of a single structure (with a single main entrance) facilitates both the security and safety of the students. (Tr. 189, 1063;

see also

PI. Exs. 1, 2, 28.)

c. The location decreases travel time between classes, ensuring that maximum time can be devoted to the dual curriculum. (Tr. 100; Pl.Ex. 28.)

d. Erecting an independent building elsewhere on the Property, as opposed to connecting to the existing Carriage House and Castle buildings, likely would require more construction,

i.e.,

building(s) with greater overall square footage, to achieve the same functionality. (Tr. 1025.)

71.Both the impact of Gordon Hall on the surrounding neighbors and the architecture of the adjoining Castle and Carriage House were taken into consideration during the design process.

(E.g.,

Tr. 191— 92, 195, 333-34, 1016-17, 1024-25, 1033-34; Pl. Exs. 42, 55; Defs. Exs. O, TT.) Gordon Hall is designed as a dormered two-story building, where the second story will have a smaller footprint than the main level. (SAF ¶ 16; Tr. 1027; Pl. Exs. 112, 113.) The dormering and overall design creates the appearance that the “addition is broken down so it looks like several smaller buildings.” (Tr. 1027.) The building bears a stone and brick exterior, a shingle roof and copper detailing in order to give an appearance that is in harmony with the buildings with which it will connect. (SAF ¶ 16; Tr. 1024, 1026; PLEx. 3(4) at 6; PI. Exs. 112, 113; Defs. Ex. TTT at A3.1.) At its closest point, Gordon Hall will be set back 25 feet from the nearest property line and 117 feet from the nearest house. (SAF ¶ 16; Tr. 209, 268, 1030; Pl.Ex. 27.) In addition, Gordon Hall will be screened from Skibo Lane by existing trees and vegetation as well as proposed trees, vegetation and solid fencing. (Tr. 1028-29 (“[Ijt’s our belief that you will never be able to see the full building as depicted in [plaintiffs exhibit 114].”); Pl.Ex. 2; Pl.Ex. 3(4) at 6 & (9); PI. Exs. 27, 37D--E, 37H, 42, 50, 55, 114, 117; Pl.Ex. 79 at 61 (stating that evergreen trees are ten to twelve feet at planting and grow six to twelve inches per year to a mature height of 20 feet); Defs. Exs. EEEE, FFFF.)

72. In addition to the construction of Gordon Hall (and other renovations), the Project contemplates striping the existing 96 parking spaces currently serving the Property in accordance with the Village Code and adding up to 81 new parking spaces. (Pl.Ex. 2; Pl.Ex. 3(4) at 7.) The additional parking will be screened from view by,

inter alia,

existing and proposed trees, vegetation and a 5-foot high solid wood fence. (PLEx. 2; PLEx. 3(4) at 7; Pl. Exs. 42, 50; PLEx. 55 at 2, 5, fig. 6 (parking area and quad area light fixtures diagramming limited light spillage).)

73. The calculation of the parking was a two-step process. First, WDS determined the number of additional parking spaces required under the Village Code. (Tr. 725-26);

see

Vill. Code § 342-56. Under section 342-55 of the Village Code,

20

WDS’s existing buildings (constructed prior to April 1, 1968) were not subject to requirements for off-street parking spaces.

See

Vill. Code § 342-55. WDS was, however, responsible for ensuring sufficient parking spaces existed for the additional classrooms being constructed — the Village Code required four parking spaces for each additional classroom and one parking space for each additional

*504

employee.

21

(Tr. 725-26);

see

Vill. Code § 342-56. The Project was expected to cause a net increase of 12 classrooms and 22 employees, leading WDS to determine that 70 additional parking spaces would be required. (Tr. 725-26);

see

Vill. Code §§ 342-55, 342-56.

74.This was the same methodology that WDS used, and long-time Village Building Inspector Ernie Poccia specifically approved, when the Carriage House was renovated in 1999. (Tr. 726-27, 738, 789, 1362.) Staudt summarized his conversations with Poccia as follows:

In this case, with respect to parking, the building inspector at that time was a man named Ernie Poccia and I met with him and I went through the different things including parking.... [I] told him the ordinance is pretty clear. The way it’s done in Mamaroneck is the way its done virtually everywhere that I’m familiar with. You provide parking for the number of classrooms you’re adding. ... I recall him saying like how many classrooms do you have now, how many classrooms are you going to have when you get done. Okay. You take the difference and you provide the parking.

(Tr. 727.) The Westchester County Planning Board (‘WCPB”) and the ZBA’s own consultants also confirmed that only 70 additional parking spaces were required under section 342-56 of the Village Code in a letter sent to the ZBA in October 2001. (Pl.Ex. 39;

see infra

¶¶ 100,102.)

75. Second, DTS determined, independent of the requirements under the Village Code, that 81 additional parking spaces should be added due to projected demand. (Tr. 726; Defs. Ex. EEE.) Thus, the Project called for the construction of 81 additional parking spaces.

22

(Tr. 725-26.)

76. The Project also contemplates improvements to traffic circulation and pedestrian safety on the Property. (Tr. 346-47; Pl.Ex. 42; Pl.Ex. 55 at 8.) For example, the existing traffic circle in front of the Castle will be enlarged, which will, among other things, enable buses to depart from the Property at dismissal when loaded, without having to wait for the buses ahead to load and depart as well.

23

(Tr. 346-47; Pl. Exs. 2, 42; Pl.Ex. 55 at 8.) This will make for a more efficient dismissal and will reduce any “caravanning” of buses leaving the Property. (Tr. 346-47; Pl.Ex. 55 at 8;

see infra

n. 61.)

77. The construction and renovations relate solely to WDS; the Project does not include any changes or additions to WHHS (or the synagogue). (Pl.Ex. 3(4) at 2; see

infra

¶ 83.)

78. The Project is compliant with applicable zoning regulations.

24

(Tr. 737.)

*505

79. Even after the construction, only 7.6% of the Property will be covered with buildings, whereas zoning regulations allow for 35% coverage. (Tr. 1019);

see

Vill. Code § 342-27, Schedule of Minimum Requirements (Part 1).

80. Construction, assuming work commenced in 2002, was estimated to cost approximately $8.6 million for the erection of Gordon Hall (plus an additional $800,000 for air conditioning installation, for a total of $9.4 million) and over $3.2 million for the renovations to the Carriage House, the Castle and Wolfson Hall. (Pl.Ex. 32; Tr. 1038.)

81. Given construction inflation, for work commencing late 2006, construction of Gordon Hall is estimated to cost $12.4 million. (Pl.Ex. 127; Tr. 1039.)

VI.

The Application for Special Permit Modification

82. In October 2001, WDS submitted to the ZBA the Application for a modification of its special permit to enable it to proceed with the Project. (Pl.Ex. 3.) The Application explains that the primary purpose of the Project is to replace outdated, inadequate classroom space with modernized, more functional facilities, and not to facilitate an increase in school population. (SAF ¶ 12; Tr. 241; , Pl.Ex. 3(4) at 2.)

83. Just prior to the submission of the Application, WDS contacted WHHS to inquire about possible high school expansion plans. (Tr. 1056-58; Defs. Exs. WWW, XXX.) Debbie Isaac, a WDS Board member, on behalf of WDS, contacted David Kalman, WHHS’s President, who stated that WHHS had no such plans and that WHHS was not interested in being a part of the Application. (Tr. 1390-91, 1398.) WDS was not aware of any WHHS expansion plans at the time it filed the Application, and it did not become aware of any such plans thereafter. (Tr. 121, 770, 776, 1057-58.) Kalman confirmed at trial that there were no — and never have been— plans for the expansion of WHHS. (Tr. 1390-95.)

84. WDS prepared and submitted to the ZBA, with the assistance of DTS,

inter alia,

a full Environmental Assessment Form, supplemented by comprehensive analyses and extensive studies of all relevant potential environmental impacts of the Project, including, but not limited to, the impact of the Project on drainage, stormwater management, utilities, aesthetics and lighting. (Tr. 274, 475-76; Pl.Ex. 3.) WDS also submitted the WDS Traffic Assessment — a comprehensive empirical analysis performed by DTS of the potential impact of the Project on traffic in the surrounding area. (Tr. 285-88; Pl.Ex. 3(8).) In all, the Application consisted of the following: (1) Special Permit Modification Application; (2) Certification Required by New York State General Municipal Law; (3) Consent of the Property Owner; (4) Memorandum in Support of Application for Special Permit Modification; (5) Special Permit Application Drawings, consisting of, among other things, the site plan, the site grading and utility plan, the landscape plan and comprehensive floor plans; (6) Full Environmental Assessment Form; (7) Drainage and Storm-water Management Report; (8) WDS Traffic Assessment; (9) Site Photographs; (10) Utility Report; (11) Letter Report Concerning Prehistoric and Historic Sensitivity; and (12) Survey of Existing Trees and Tree Symbols List. (SAF ¶ 13; Tr. 281-89; Pl.Ex. 3.) The Application did not request any zoning variances. (SAF ¶ 14; Pl.Ex. 3.)

85. Prior to preparing the WDS Traffic Assessment, DTS consulted with BFJ, the ZBA’s consultants and traffic experts, as to which intersections should be included

*506

in the study.

25

(Tr. 313-14, 655-57.) On BFJ’s recommendation, DTS added two intersections to the 15 it already had identified.

26

(Tr. 655-56.) Thus, the WDS Traffic Assessment evaluated the impact of the Project on traffic at 17 intersections in and around WDS and Orienta Point. (Tr. 286, 313; Pl.Ex. 3(8) at 5.) The 17 intersections comprised a total of approximately 50 separate

movements'

— e.g., southbound through, southbound right-turn, etc.

27

(Tr. 286; Pl.Ex. 3(8) at 13-16, tbls. 2, 3.) The traffic at each of these movements was counted in fifteen-minute intervals from 7 a.m. to 9:30 a.m. and from 2:30 p.m. to 7 p.m. — a total of almost 3,000 separate movement intervals. (Tr. 286.)

86.Based on these traffic counts, and for each of the 17 intersections, DTS identified the “peak hour” (four consecutive 15-minute counts with the greatest volume) for the morning (“AM Peak Hour”) and afternoon (“PM Peak Hour”).

(Id.)

DTS then analyzed the impact of the Project on traffic for movements at the 17 intersections during both the AM Peak Hour and PM Peak Hour. (Tr. 287-88.) The WDS Traffic Assessment compares traffic under a “No Build” scenario (assuming background growth alone) and a “Build” scenario (assuming background growth in addition to future enrollment of 125 additional students at WDS after completion of the Project). (Pl.Ex. 3(8) at 13-16, tbls. 2, 3.) DTS utilized a background growth factor of 2% per annum, which was based upon the New York State Department of Transportation (the “NYDOT”) recommendation of a factor of 1.5-2% for that specific intersection.

28

(Tr. 287, 292-93, 607.) To be conservative, WDS’s peak hour traffic was imposed on top of the peak hour for each of the individual intersections, regardless of whether or not the respective peak hours were actually the same, thus examining the potential traffic impact under a worst-case scenario. (Tr. 291-92, 294-95.)

87. The delay (in seconds) and Level of Service (“LOS”) for each of the 17 intersections are set forth in the WDS Traffic Assessment. (Pl.Ex. 3(8) at 13-16, tbls. 2, 3.) LOS’s range from “A” (representing the best level of service) through “F” (representing congestion). (Tr. 544.) LOS is not a measure of the relative safety of an intersection. Rather, it is purely a function of

delay

— ie., the maximum amount of time that a motorist might have to wait at an intersection (including time spent at a red light) during the peak hour. (Tr. 305-06, 354-55.)

88. The majority of the movements were projected to perform at an LOS of “A” during the AM Peak Hour and PM Peak Hour under the Build

scenario

— ie., assuming the Project went forward and

*507

enrollment was at projected capacity. (PI. Ex. 3(8) at 13-16, tbls. 2, 3.)

89. The Project was predicted to significantly adversely affect the LOS of only one of one hundred movements (or one movement out of the 50 movements during the AM Peak Hour, and none out of the 50 movements during the PM Peak Hour). (PLEx. 3(8) at 13-16, tbls. 2, 3.) The westbound movement at Rushmore Avenue and Bleeker Avenue (during the PM Peak Hour) was projected to go to an LOS of “A” (9.72 seconds delay) in the No Build scenario to an LOS of “B” (10.22 seconds delay) in the Build scenario.

(Id.)

It is not disputed, however, that both an LOS of “A” and an LOS of “B” are acceptable levels of service. (Tr. 667; PLEx. 68 at 25.)

90. The sole intersection projected to have any movements with an LOS below “C” in either the No Build or Build scenario was the Boston Post Road/Orienta Avenue intersection. (PLEx. 3(8) at 13-14, tbl. 2.) However, this intersection is projected to have one movement with an LOS of “E” regardless of whether or not the Project goes forward.

(Id.)

Moreover, the maximum impact of the Project on any movement at this intersection was projected — in the worst case scenario — to be only 4.7 seconds: the westbound approach at the Boston Post Road/Orienta Avenue intersection in the AM Peak Hour is projected to be 74.8 seconds in the No Build scenario, as compared to 79.5 seconds in the Build scenario.

(Id.)

This movement reflects traffic exiting Orienta Point. (Tr. 304, 611.)

91. The Project was not predicted to significantly impact the LOS for any other intersection or any other movement. (Pl. Ex. 3(8) at 13-16, tbls. 2, 3; PLEx. 55 at 9 & tbl. 2.)

92. The WDS Traffic Assessment concluded as follows:

The proposed WDS project is projected to result in a net increase of 26 entering and 16 exiting vehicle trips in the weekday AM peak hour and 12 entering and 19 exiting vehicle trips in the weekday PM peak hour. The results of this assessment demonstrate that the seventeen study intersections currently operate at acceptable overall peak hour levels of service and will continue to operate as such under projected conditions with the proposed WDS project in 2003. The traffic volumes generated by the proposed project will not have significant effect on the operations of the study intersections.

(Pl.Ex. 3(8) at 17;

see also

Tr. 307-08, 321.)

VII.

The Public Hearing Process

93. When WDS submitted the Application, the following individuals (appointed by the Village Board of Trustees) served on the ZBA: (1) Antonio Vozza (Chairman); (2) George Mgrditchian; (3) Barry Weprin; (4) Clark Neuringer; and (5) James Gaita. (SAF ¶ 15.)

94. In December 2002, Peter Jackson replaced Gaita as a member of the ZBA.

(Id.)

Jackson, like Mgrditchian, previously had served on the ZBA when David Neu-feld, a vocal opponent of the Project, served as Chairman. (Tr. 1313; Jackson Dep. at 14-15; Mgrditchian Dep. at 13-14.) Also, in December 2002, Vozza, who had taken over for Neufeld as ZBA Chairman, asked his long-time friend and client, Mauro Gabriele, to take over for him as Chairman. (SAF ¶ 15; Gabriele Dep. at 23, 25-31, 53, 107-08; Mgrditchian Dep. at 14.)

95. Gabriele agreed, and became ZBA Chairman in December 2002. (Gabriele Dep. at 23, 25-31, 53, 107-08.) Gabriele also was a friend of current ZBA member

*508

Mgrditchian.

29

(Gabriele Dep. at 53, 55-56.) Indeed Gabriele, Mgrditchian and Vozza all were members of a local social club and socialized with one another on a regular basis. (Gabriele Dep. at 55-56.) Mgrditchian and Vozza were also business partners. (Mgrditchian Dep. at 33-36.)

96. The first series of public hearings on the Application was held by the ZBA on November 1, 2001, December 6, 2001, January 3, 2002 and February 7, 2002. (SAF ¶ 19; PI. Exs. 65-68.) On December 6, 2001, the ZBA voted unanimously to designate itself as the “lead agency” on the Project for State Environmental Quality Review Act (“SEQRA”) purposes. (SAF ¶ 20; Pl.Ex. 66 at 51-52.)

97. Prior to and during the first series of public hearings, the ZBA requested and received comments on the Application from Village staff members, agencies and consultants, including the Fire Commissioner, the Coastal Zone Management Commission (“CZMC”), the WCPB and BFJ. (SAF ¶ 21; Tr. 478-79; Pl. Exs. 39-41, 103, 105.)

98. On October 18, 2001, the Fire Inspector advised the ZBA that the drawings submitted by WDS “appeared to be in compliance with current code requirements.” (SAF ¶ 22; Pl.Ex. 105.)

99. By consistency resolution dated January 16, 2002, the CZMC unanimously resolved that the Project was consistent with the Village’s Local Waterfront Revitalization Program. (SAF ¶ 24; Tr. 821; PLEx. 106.) The CZMC did not request any changes to the plans. (PLEx. 106.)

100. By letter dated October 31, 2001, the WCPB confirmed that only 70 parking spaces were required under section 342-56 of the Village Code and, therefore, recommended that the ZBA “consider a reduction in the amount of parking spaces required and encourage the applicant to reduce the number of spaces proposed.” (SAF ¶ 23; PLEx. 39.)

101. The Application also was reviewed by Fish and Jacquemart of BFJ. (Tr. 653-54.) Jacquemart, BFJ’s traffic expert, reviewed the WDS Traffic Assessment (including the Capacity Analysis Worksheets), verified the methodology and concluded that the WDS Traffic Assessment was a “good analysis” that met all of the requirements of a traffic study.

30

(Tr. 662, 1106, 1146, 1149; Pl.Ex. 67 at 14.) Jacquemart did not have any disagreements with respect to the methodology employed by DTS. (Tr. 1144-46.) Indeed, neither Fish nor Jacquemart ever criticized the WDS Traffic Assessment until after the Application had been denied. (Tr. 899-900.)

102. By a memorandum dated December 31, 2001, BFJ provided the ZBA with comments on the Application. (PLEx. 41.) Jacquemart drafted the “Traffic” section, which included all of his concerns with respect to the impact of the Project on traffic as well as the WDS Traffic Assessment itself. (PLEx. 41 at D661-62; Tr. 658, 1149-50.) The memorandum did not express any concerns relating to the impact of the Project on traffic at the Boston Post Road/Orienta Avenue, Boston Post Road/Delancey Avenue or Boston Post Road/Rockland Avenue intersections. (PL

*509

Ex. 41; Tr. 658-60.) Nor did the memorandum raise any concerns with respect to the validity of the WDS Traffic Assessment.

31

(Pl.Ex. 41.) The memorandum also did not identify any concern over insufficient parking.

(Id.

at D662.) To the contrary, BFJ informed the ZBA that the Project called for too many parking spaces.

(Id.)

The memorandum also noted that Gordon Hall would directly impact the views from only four houses along Skibo Lane.

(Id.)

103. Fish subsequently provided the ZBA with comments on the Application at public hearings. Before speaking at the ZBA hearings, Fish consulted with Jaeque-mart.

32

(Tr. 663, 666, 718, 1150.) At the January 3, 2002 ZBA hearing, Fish stated on the record, among other things, the following:

a. “[Ojur traffic engineer, George[s] Jaequemart, did not think it was necessary for him to be here tonight. I will repeat his concerns. He is our traffic engineer, but basically he felt that the analysis they had gone through is a good analysis; that it meets all the requirements of the traffic analysis.” (Pl.Ex. 67 at 14;

see also

Tr. 1151.)

b. “Off-peak hours, to the advantage of the school, their operations are such that they are not as overlapping particularly with the afternoon peak hour, 4:30 to 5:30. They are not an office building or they are not — they are more of an off-peak, sort of peak to themselves. So we are not — we wanted it pointed out to you. [The Orien-ta Avenue/Boston Post Road intersection] will be something that I think you normally would look at, the Planning Board would look at, but not something that we felt needed mitigation.” (Pl.Ex. 67 at 16-17.)

c. “We have gone through their numbers. We don’t have any disagreement on their numbers other than the first ones which I sort of glossed over. That is that if they used the ITE numbers, the generation numbers are higher than they have used. Let me say why we don’t have a problem with that. They have done their own numbers. There is no better way to calculate this than to use your own numbers.” (Pl.Ex. 67 at 28;

see also

Tr. 1152-53.)

d. “[I]t seems to us there are only four homes or four households that are directly affected ... by the massing of the new building.... I think particularly it is the center two homes here that could be affected. It is purely aesthetic. It is how it is treated, the landscaping is treated there, what trees, a detailed landscaping plan which again, it is up to you. You may want to defer that matter to the Planning Board. We did not see that really as an environmental matter, not an EIS matter.” (Pl.Ex. 67 at 21.)

104. On January 17, 2002, DTS responded to BFJ’s December 31, 2001 memorandum and the issues raised by Fish at the January 3, 2002 ZBA hearing. (Pl.Ex. 42.) DTS addressed BFJ’s concerns with respect to landscaping, lighting, parking and internal traffic/circulation.

(Id.;

Tr. at 325-29.) With respect to in

*510

ternal traffic, WDS agreed to increase the turning radii of the traffic circle, thus allowing buses that were ready to depart the site to pass by buses that remain parked. (Pl.Ex. 42; Tr. 326, 334, 346-47;

see supra

¶ 76.) WDS also, in response to BFJ’s request, agreed to remove the “excess [parking] spaces.” (Pl.Ex. 42; Tr. 329.) DTS believed that their January 17, 2002 response addressed all of the issues raised by BFJ. (Tr. 329.)

105.On February 7, 2002, the ZBA voted unanimously on the Application under the implementing regulations of SEQRA to issue a Negative Declaration. (SAF ¶ 25; Pl.Ex. 68 at 51-52; Pl.Ex. 97.) The issuance of the Negative Declaration constitutes a finding by the ZBA that the Project will not have any significant adverse environmental impact, that no Environmental Impact Statement (“EIS”) is required and that the special permit phase may continue. (Pl.Ex. 97.) The Negative Declaration includes, among others, the following findings:

Seventeen intersections were evaluated under weekday AM and PM peak traffic conditions. The results of the assessment demonstrated that the seventeen study intersections currently operate at acceptable overall peak hour levels of service and will continue to operate as such under projected conditions....

The environmental concern regarding parking is to be sure there are an adequate number of parking spaces for the existing and proposed uses, while at the same time preserving the existing mature trees on site and eliminating excess impervious surfaces. The Village Code requires 70 parking spaces to be added for the proposed project. The applicant has proposed 79 spaces. Applicant proposes to create a grass area for temporary overflow parking and to “bank” an unpaved area for 26 of the parking spaces in the event a demand for such spaces occurs.

As a result, the traffic volumes, circulation and proposed parking will not have a significant adverse effect on the environment.

(Id.

at 2.)

106. After the issuance of the Negative Declaration, there was a small but vocal outcry of community opposition to the Project led by, among others, former ZBA Chairman Neufeld and Orienta Point resident Christopher Tilley. (Pl.Exs. 61, 123.) Dozens of letters opposing the Project were sent to the ZBA, many from the Orienta Point Association as well as from the same, small group of residents. (Pl.Ex. 61 (containing both positive and negative letters).) In addition, residents expressed their concerns to ZBA members outside of the public hearings. (Tr. 1278, 1263-66.)

107. Tilley stated at trial that he (and other Orienta Point residents) never received “legal notice” from WDS regarding its intended expansion. (Tr. 1201.) He testified that he first learned of the WDS proposal in February 2002, when he received a flyer from the Orienta Point Association concerning a meeting later that month at which WDS would present its proposal to the community members in attendance.

(Id.)

108. Tilley acknowledged that some of his neighbors received phone calls from Hammerman in November 2001. (Tr. 1202.) Hammerman testified that she made phone calls to “dozens” of area residents based on “a list of the neighbors to be noticed to come to the hearings,” but only two residents took Hammerman up on her offer to meet and explain the Project. (Tr. 192.)

109. Given the small, public outcry following the passage of the Negative Decía-

*511

ration, WDS representatives volunteered to meet with representatives of the neighborhood. (Tr. 194-95; Pl.Ex. 69 at 86.) Hammerman, on behalf of WDS, then sent a letter to area residents describing WDS and the Project. (Defs. Ex. TT; Tr. 195— 96.) WDS and DTS also attended several meetings of the Orienta Point Association at which they presented the Project and fielded questions from the 50 or so resident attendees. (Tr. 195, 197.) In addition, WDS gave tours of the facility to a dozen or so residents. (Tr. 197.) Staudt stated that despite various attempts, some community members opposed to the Project, including Neufeld, refused to meet with WDS. (Pl.Ex. 70 at 71-72.)

110. Certain residents of Orienta Point, including Neufeld, formed Save Orienta’s Unique Neighborhood (“SOUND”) to coordinate opposition to the Project.

33

(Tr. 1220, 1276-78.) SOUND, Neufeld, Tilley and other residents of the Village also commenced an Article 78 special proceeding in New York State Supreme Court against the ZBA, the ZBA members and WDS seeking annulment of the Negative Declaration.

34

(Tr. 1270-71; Pl.Ex. 4 at F-l.)

111. On April 4, 2002, during a private executive session held prior to the ZBA hearing, Vozza (Neufeld’s successor) distributed a memorandum recommending that the Negative Declaration be rescinded. (Pl.Ex. 46; Pl.Ex. 70 at 3.) Vozza had not previously discussed the memorandum with the ZBA members, nor had the ZBA members had any discussions concerning rescission of the Negative Declaration. (Mgrditchian Dep. at 49-50, 53; Neuringer Dep. at 50-52; Weprin Dep. at 46.) Nevertheless, the ZBA voted that evening to hold a rehearing to review its issuance of the Negative Declaration. (SAF ¶ 27; PI. Ex. 70 at 76-77.) The ZBA members were not aware of any other instance in which the ZBA had ever attempted to rescind a negative declaration. (Mgrditchian Dep. at 50-51; Neuringer Dep. at 49; Weprin Dep. at 52-53.)

112. Additional public hearings were held on the Application on May 2, 2002, June 24, 2002 and August 1, 2002.

35

(SAF ¶ 28; PI. Exs. 71-73.)

113. By letter dated June 17, 2002, from DTS to the ZBA, WDS memorialized commitments it had made in response to various concerns raised by the ZBA and the public. (Pl.Ex. 50; Tr. 332.) The letter addressed,

inter alia,

lighting, landscaping/screening, emergency access and internal traffic circulation. (Pl.Ex. 50; Tr. 332-38.) With respect to parking, DTS confirmed WDS’s agreement to eliminate and reallocate the southernmost row of

*512

parking spaces in response to the ZBA’s request. (Pl.Ex. 50 at 1; Tr. 343.) The letter also memorialized WDS’s commitment to cap its enrollment: “The West-chester Day School agrees, as part of the application, to cap its enrollment at 591 students and to cap [Westchester Summer Day] at its current level of 500 students.”

36

(Pl.Ex. 50 at 4; Tr. 336-37.) WDS believed that its June 17, 2002 letter adequately addressed all of the ZBA’s concerns. (Tr. 337-38.)

114. However, on August 1, 2002, the ZBA voted 3-2 in favor of rescinding the Negative Declaration under SEQRA (Vozza, Mgrditchian and Neuringer voting to rescind).

37

(SAP ¶ 29; Pl.Ex. 73 at 68-70.) As this Court has previously ruled, the Negative Declaration was rescinded not because of any new information relating to any significant adverse environmental impact of the Project, but in response to the belated public outcry led by Neufeld and Tilley.

See Westchester I,

236 F.Supp.2d at 359 . The effect of the ZBA’s decision was the issuance of a “positive declaration” requiring WDS — ten months after submitting the Application — to begin to undertake environmental studies and to prepare a full EIS. (Pl.Ex. 99.)

115. WDS commenced this action on August 7, 2002. On September 18, 2002, defendants moved to dismiss and WDS cross-moved for partial summary judgment. (SAF ¶ 30.) On December 4, 2002, this Court granted WDS’s motion for partial summary judgment, holding that the Negative Declaration was not properly rescinded and remained in full force and effect.

(Id.); see Westchester I,

236 F.Supp.2d 349 .

116. Additional public hearings on the Application were held on September 5, 2002, October 3, 2002, November 7, 2002, January 8, 2003, February 6, 2003 and March 13, 2003. (SAF ¶ 31; Pl. Exs. 74-79.) A small but vocal number of Orienta Point residents again raised complaints about the Project.

117. At least three Orienta Point residents voiced the opinion that WDS should sell its property and move elsewhere. (PI. Ex. 79 at 58; Pl.Ex. 77 at 11, 43.)

118. Others expressed concern over the reduction in property values the proposed expansion would cause. (Pl.Ex. 61 at D763; Tr. 1214, 1221;

see

Pl. Exs. 77, 79.) The Court finds that defendants have produced no credible evidence demonstrating the effect of the Project on property values. The Affidavit of Jonathan A. Bernz, received into evidence at trial— originally submitted four years ago during SOUND’S Article 78 proceeding — provides nothing more than a conclusory statement that “the proposed expansion will be devastating to the various aesthetic elements which create the economic values of the adjacent properties.” (Defs. Ex. CCCC at ¶ 6.) At least one resident noted that a modernized structure would increase the aesthetic quality of the neighborhood and “send real estate prices up” (PLEx. 79 at 47), while another resident felt the School’s presence enhanced the value of the neighborhood homes. (PLEx. 61 at D753.)

119. Tilley also questioned whether WDS was a good neighbor. For example,

*513

Tilley complained at trial about WDS’s slow response in removing fallen trees as well as removing trees that appeared likely to fall, at least one of which fell, damaging his Jaguar. (Tr. 1241,1273-76.)

120. On January 10, 2003, a conference was held before this Court, during which the Court directed the ZBA to give WDS a list of outstanding issues that were of concern to the ZBA and that might impede the approval of the Application. (Tr. 826.) On January 17, 2003, after each of the ZBA members had an opportunity to provide input, the ZBA sent such a list to WDS (the “Outstanding Issues List”).

38

(Pl.Ex. 54; Tr. 915.) Among the issues identified by the ZBA were the following:

6. Confirm whether the “green” parking to be held in reserve can be placed in a different location further to the north and interior to the site.

19. Provide additional information on traffic volume for the intersections of Rockland Avenue and Boston Post Road and Delancey Avenue and Boston Post Road and the effect, if any, of increased enrollment.

(Pl.Ex. 54 at 3—4.) Nobody from BFJ or the Village had suggested that the intersections identified in Item 19 be studied before the Application was submitted on October 10, 2001. (Tr. 351;

see supra

¶ 85.) The ZBA did not indicate to WDS or this Court that there were any open issues other than those explicitly set forth on the Outstanding Issues List. (Pl.Ex. 54.)

121. On January 30, 2003, WDS responded to each of the items in the Outstanding Issues List. (Pl.Ex. 55.) In response to Item 6, WDS confirmed that the reserve parking had been “reallocated to both an area opposite the High School (12 spaces) and to an area on the north side of the entry drive (19 spaces).” (Pl.Ex. 55 at 3.) In response to Item 19, WDS submitted a traffic analysis of the Boston Post Road/Delancey Avenue and Boston Post Road/Rockland Avenue intersections (the “Supplemental Traffic Assessment”). (Pl. Ex. 55 at 9, tbls. 2, 3; Tr. 347-49, 1300.) The Supplemental Traffic Assessment concluded as follows: “[T]he two study intersections have sufficient reserve capacity to accommodate the modest increase in peak hour traffic from the WDS project and acceptable traffic operations will continue to be provided under projected Build conditions.” (Pl.Ex. 55 at 9; Tr. 348-49.) DTS believed that the January 30, 2003 letter adequately addressed all of the items included in the Outstanding Issues List. (Tr. 349.)

122.At a public hearing on February 6, 2003, the ZBA indicated that it would hold a special meeting to “wrap ... up” the Application and that it wanted WDS to address four remaining issues at that special meeting by: (1) providing renderings of Gordon Hall from Skibo Lane; (2) addressing the possibility of moving the new building slightly further back from the property line; (3) discussing the possibility of reducing the overall square footage of Gordon Hall; and (4) clarifying the Project’s potential likely effects on traffic in Orienta Point.

39

(Pl.Ex. 78 at 90-100.) The ZBA did not mention any other issues, even those items identified in the Out

*514

standing Issues List.

(Id.)

Nor did the ZBA inform WDS that the responses in its January 30, 2003 letter were in any way deficient. (Pl.Ex. 78.)

123. At the March 13, 2003 ZBA hearing, WDS provided the ZBA with requested renderings of Gordon Hall from Skibo Lane. (Pl.Exs. 79, 112-114.) WDS also provided a detailed presentation by its architect on a tentative proposal that reduced the size of Gordon Hall by 1,000 square feet, thereby eliminating two full classrooms' — replaced by two smaller resource rooms — and moving the building further from the property line. (Pl.Ex. 79 at 11-16.) WDS advised the ZBA that it would secure approval to construct this smaller structure if the ZBA was more inclined to accept this modified proposal. (Tr. 200-01, 208, 490, 689, 753; Defs. Ex. DDDD.) WDS also proposed to add additional evergreen screening between the buildings and Skibo Lane. (Pl.Ex. 79 at 61 (noting growth rate, initial size and size at maturity of trees); Defs. Ex. DDDD at 3.) At the end of the evening, the ZBA closed the hearing and began its deliberations. (Pl.Ex. 79 at 101-02.) The ZBA continued to deliberate on April 3, 2003, May 1, 2003 and May 13, 2003. (SAF ¶ 33; Pl. Exs. 80-82.)

124. Defendants do not dispute that the ZBA had the ability to approve the Application subject to conditions intended to mitigate adverse effects relating to public health, safety and welfare that might arise from the Project. (Tr. 921,1336;

see also

Vill. Code § 342-72.) As Gabriele acknowledged at trial, the ZBA “can always impose conditions on resolutions.” (Tr. 921;

see

Tr. 1336-37 (Jackson acknowledged ZBA’s ability to impose conditions).)

125. In the months leading up to the May 13, 2003 vote, Staudt met with BFJ and Village counsel to attempt to work out reasonable conditions that could be imposed on an approval of the Application. (Tr. 729.)

126.In fact, during this time, the ZBA’s consultants at BFJ repeatedly advised the ZBA of conditions it could impose to mitigate any potential adverse effects. (Pl. Exs. 53, 58, 102; Tr. 671, 674-80.) For example, on January 7, 2003, Fish sent the ZBA a list of “potential modifications” that “might now be considered by the ZBA as possible conditions to the granting of a special permit.” (Pl.Ex. 53; Tr. 671.) Among the proposed conditions was an enrollment cap for the Property (including both WHHS and WDS). (Pl.Ex. 53 at 4.) At the time Fish sent the memorandum to the ZBA, he did not believe that there were any issues concerning the Application that could not be mitigated by conditions. (Tr. 674-75.) Moreover, at the February 6, 2003 ZBA hearing, Fish informed the ZBA that WDS already had addressed the issues identified in the list:

MR. FISH: I think in the memo we gave you we listed nine-sort of nine potential issues right now and I think they’ve addressed all nine issues. I think probably on my sense is about seven of them there are some they’ve responded to our initial memos to the board. And, again, two of them are enrollment cap for the total site including the high school. They haven’t agreed to that, it’s my understanding. Although the board is free to impose that in my view. And secondly, the other one is they have not obviously made any changes that I have heard this evening on moving the building. So of the nine potential issues or conditions, I think they’ve responded significantly to seven of them. And the other two-the two I think remaining in my mind are the total enrollment cap and whether the

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building can be adjusted somewhat to set back from Skibo Lane.

MR. MGRDITCHIAN: Mr. Fish, I have to concur with that ....

(Pl.Ex. 78 at 51-52.) At trial, Fish testified that he thought that issues concerning both the size of the building and the setback from Skibo Lane could be mitigated by the ZBA through conditions. (Tr. 674-75, 680-81.)

127. On March 20, 2003, BFJ sent to ZBA Secretary Ann Malavet a draft resolution approving the WLDS Application subject to certain conditions, including an enrollment cap for the Property and a “traffic management plan” providing for the establishment of a bus schedule. (PL Ex. 58; Tr. 677-80.)

128. On April 3, 2003, BFJ sent the ZBA a memorandum specifically addressing the impact of an enrollment cap on traffic. (Pl.Ex. 102; Tr. 675-76.) The memorandum states that “the projected increase in traffic from the Day School is less than one year of background growth.” (Pl.Ex. 102 at 2.) Nevertheless, after taking “a close look at the relationship between the student cap and traffic impacts,”

(id.

at 1) the memorandum discusses the possibility of imposing an interim and final enrollment cap on the Property and concludes that “[t]his interim cap, combined with our previous recommendation of spacing the existing buses at least 1 minute apart, should be able to reasonably control traffic impacts.”

(Id.

at 2.) This conclusion was based on an analysis performed by Jacquemart, BFJ’s traffic expert and defendants’ traffic expert at trial.

(Id.

at 1.)

129. At the conclusion of the May 1, 2003 ZBA hearing, ZBA member Neu-ringer suggested that different resolutions relating to the WDS Application be circulated for review in advance of the next meeting:

Considering what we have been struggling with on this, I don’t think it would be at all inappropriate if there were more than one resolution to review. In other words, it doesn’t have to come down to just one document. There could be one, two or three for review.

(Pl.Ex. 81 at 49-50.) Mgrditehian moved that additional resolutions and findings of fact be circulated for review before the next meeting.

(Id.

at 50.) Gabriele declared that it was “incumbent” upon the ZBA to review the draft resolution (approving the Application) provided by BFJ on March 20, 2003 before its next meeting.

40

(Id.

at 49.)

130. Nevertheless, the draft resolution provided by BFJ was not circulated to the ZBA members before the May 13, 2003 ZBA hearing. (Jackson Dep. at 35, 54-55; Mgrditehian Dep. at 56-57; Neuringer Dep. at 69-70; Weprin Dep. at 56-57; Gabriele Dep. at 67-68.) Nor were any other draft resolutions or findings of fact circulated. (Jackson Dep. at -35, 54-55; Mgrditehian Dep. at 56-57; Neuringer Dep. at 69-70; Weprin Dep. at 56-57; Gabriele Dep. at 67-68.) The ZBA members also did not discuss approving the WDS Application subject to conditions — or even what conditions might address their concerns. (Jackson Dep. at 51; Mgrditc-hian Dep. at 65, 99-100; Neuringer Dep. at 86; Gabriele Dep. at 73, 75-76.)

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131. Instead, at the May 13, 2003 ZBA hearing, Gabriele presented a single resolution denying the WDS Application in its entirety (the “May 13 Resolution” or “Resolution”). (Neuringer Dep. at 70; Gabriele Dep. at 65.) Gabriele stated on the record, among other things, the following:

[Fjirst and foremost, the primary professional report that was submitted to the board which is the traffic study, upon close scrutinization was found to have a number of inconsistencies and what could be regarded as inaccuracies.

The essence of the proposed resolution that will lead to rejection of the application is essentially predicated upon the traffic which exists in the surrounding area,. the intensity of use, and a lack of clarity as to what the long-term implications would be as far as aggravating a traffic situation which is already somewhat precarious in the neighborhood as has been demonstrated through public outcry as well as through a contradictory traffic study.

(Pl.Ex. 82 at 4-6.)

132. That evening, the ZBA voted 3-2 to deny the Application.

(Id.

at 7-9; SAF ¶ 34.) Gabriele, who drafted the resolution, voted to deny; he was joined by Mgrditchian and Jackson, both of whom previously served on the ZBA with vocal Project opponent Neufeld. (Pl.Ex. 82 at 8;

see supra

¶ 94.) The Resolution was filed in the office of the Clerk of the Village on May 20, 2003. (SAF ¶ 35; Pl.Ex. 4.) The May 13 Resolution specifies all of the ZBA’s grounds for denying the Application. (Tr. 880, 1319.) The ZBA members did not take the Negative Declaration and the factual findings contained therein into consideration in voting on the May 13 Resolution. (E.g., Tr. 901-02,1365.)

133. After the vote denying the Application, and despite the existence of pending litigation, every member of the ZBA destroyed or discarded all of his documents relating to the Application, including handwritten notes. (Mgrditchian Dep. at 15-19; Neuringer Dep. at 22-26, 86; Weprin Dep. at 13-15, 65-66; Gabriele Dep. at 40 — 43.) Mgrditchian, for example, “shredded” all of his documents relating to WDS, including “numerous” handwritten notes, “[ujpon the closing and the decision on the Day School application.” (Mgrditc-hian Dep. at 17-18.) Mgrditchian testified at his deposition that “[ojnce the application is closed and voted upon, there’s no reason to keep an application any longer.”

(Id.

at 67.) Likewise, Gabriele testified that “[ajfter the final resolution was voted on” (Gabriele Dep. at 40-42) he threw his documents relating to WDS — including handwritten notes — “directly in the garbage pail.” (Tr. 923.) Similarly, Jackson put his WDS-related materials “out to the curb.” (Tr. 1310.) The ZBA members were aware of this pending litigation when they disposed or discarded their documents and handwritten notes.

41

(Tr. 924; Jackson Dep. at 13-14; Mgrditchian Dep. at 20; Weprin Dep. at 9-10; Gabriele Dep. at 38-39.)

134. The ZBA members considered the May 13 Resolution to constitute the “final resolution” regarding the Application and believed the hearing process was “closed.” (Gabriel Dep. at 40-42; Mgrditchian at 15-19, 66-67.) Indeed, each of the ZBA members who voted to deny the Application agreed that if WDS were to file another application, it would have to begin the entire application process all over again,

*517

including going through a new SEQRA review despite this Court’s previous Order reinstating the Negative Declaration. (Tr. 921, 1367-68; Mgrditchian Dep. at 66-67.)

135. The Court is aware that the May 13 Resolution states that “[t]his denial exclusively addresses the future expansion of the school and its accessory uses, both from a physical and operational standpoint

as they relate to this application.”

(Pl.Ex. 4 at F-10 (emphasis added).) The Court also recognizes that WDS is in no way precluded from filing another application seeking expansion. However, this Court finds that the May 13, 2003 vote constituted the final say of the ZBA with reference to the Application, thereby exhausting WDS’s administrative remedies. Indeed, that the ZBA members themselves referred to the process as “closed,” discarded their Application-related materials and failed to comment on WDS’s 43,000 square foot proposal

(see supra

¶ 123) belies any contention the ZBA would have entertained, or that WDS could have submitted, additional information or a modified Application. (Mgrditchian Dep. at 15-19; Ga-briele Dep. at 40-42.)

136. Based on these facts, the Court finds that the May 13 Resolution constitutes a complete, final and definitive determination by the ZBA with respect to the Application and any and all self-imposed or requested concessions made in furtherance of the Application. The Court further finds that the denial of the Application at the least will result in long delay of WDS’s efforts to remedy the gross inadequacies of its facilities, and substantially increase construction costs. Thus, the denial of the Application significantly interferes with WDS’s ability to accomplish its educational mission, and significantly impacts WDS’s retention and recruitment of students and teachers.

137. Based on the extensive record developed at trial, the Court finds much reason to doubt the sincerity of the ZBA’s professed willingness reasonably to consider another application addressing WDS’s needs in an acceptably efficient and practical manner.

42

VIII.

The May 13,2003 Resolution

138. The May 13 Resolution denied the Application on the following stated grounds: (1) traffic; (2) parking; and (3) intensity of use, including “[t]he overall physical size of the structure, its location on campus and the effect it would have on the surrounding neighbors.” (Pl.Ex. 4 at F-6 to F-10.) The May 13 Resolution did not identify any of these, or any other purported justifications, as compelling governmental interests nor state that they

*518

pose any threat to public health, safety or welfare. The May 13 Resolution did not discuss any less restrictive means of addressing any of the ZBA’s concerns. Nor did it express the conclusion that the Project would, as a whole, actually detract from public health, safety or welfare. It also did not indicate that the ZBA gave any special consideration to WDS’s proposed religious and educational use or its need for the proposed facilities or evidence a balancing of these needs against any potential environmental impact. (Tr. 881.)

139. The May 13 Resolution was drafted primarily by Gabriele; he did not get input from the other ZBA members.

43

(Pl. Ex. 101; Tr. 859, 927, 1304; Jackson Dep. at 36-37, 54-55; Neuringer Dep. at 72; Weprin Dep. at 59, 60, 64; Gabriele Dep. at 76-79.) The May 13 Resolution was also drafted without specific suggestions from the ZBA’s consultants and traffic experts at BFJ or from SOUND’S traffic expert, Dr. Horodniceanu, upon whom the ZBA heavily relied. (Tr. 680-81, 1127-28;

see infra

¶¶ 145, 152, 157, 161.)

140. Many of the grounds identified in the May 13 Resolution were conceived after the ZBA closed the hearing process, affording WDS no opportunity to respond. (Tr. 840.) Gabriele testified: “[W]e realized the deficiencies ... pretty much after we had closed the application.... [A]ll the issues were not found until after we had closed deliberations.”

(Id.)

141. Moreover, Jackson and Gabriele testified at trial that they lacked enough information on the Application to make an informed decision. (Tr. 832, 842, 876, 884, 1307.) Jackson testified that he “still had questions about all the information that was being provided.” (Tr. 1307.) Gabriele contended at trial that “it was difficult for me to actually achieve a point where I felt I fully understand what this application is about. I never achieved this point .... Even until today.” (Tr. 884.) In fact, as of May 13, 2003, Gabriele had not reviewed all the transcripts of the ZBA hearings relating to the Application, even though he did not assume his position as ZBA Chairman until December 2002, over a year after the Application was filed. (Tr. 994.) Nor had he reviewed the most recent renewal of WDS’s special permit (November 2, 2000). (Tr. 901-03.) And neither he nor Jackson had ever seen the Negative Declaration issued by the ZBA and reinstated by this Court’s December 2002 Order. (Tr. 901-02.)

142.Despite the fact that the ZBA discovered issues after closing the hearing process and apparently still had questions regarding the Application, none of the ZBA members moved to re-open the hearing to request additional information. (Tr. 921.) In fact, it was Chairman Gabriele who had suggested three months earlier that the ZBA hold a special meeting to “wrap ... up” the Application:

I conferred with my fellow board members during the break and I think it would be very productive for all of us, given the calendar, given the amount of time it takes to get through our agenda, I would like to propose if the applicant is amenable, that we make every effort to have a special meeting to see if we can’t

*519

wrap this up.

44

(Pl.Ex. 78 at 90.)

A.

Traffic

143. The May 13 Resolution states that “[t]he single most important element in considering this application is the intensity of use and the traffic which it will generate.” (PLEx. 4 at F-6.)

144. In concluding that the Project would adversely impact traffic, the ZBA disregarded the WDS Traffic Assessment (and Supplemental Traffic Assessment), the opinions of Divney, the opinions of its own traffic experts at BFJ and its own findings in the Negative Declaration. The ZBA disregarded these conclusions and opinions despite the lack of any contradictory traffic study, or any inconsistent empirical data in the public record.

45

145. Instead, the May 13 Resolution relies heavily on comments made by Dr. Horodniceanu and upon Gabriele’s own critique of the WDS Traffic Assessment. The Traffic section states:

With respect to the applicant’s traffic study, specific questions were presented by other professionals which called into question the validity of the traffic study. Specifically, the testimony of Dr. Michael Horodniceanu, a distinguished traffic engineer who is a former New York City DOT Commissioner and has completed dozens of traffic studies throughout the metropolitan area.

(Id.

at F-7.) Dr. Horodniceanu was in fact the sole professional who raised any issues with respect to the WDS Traffic Assessment. (Tr. 899-900.) Dr. Horodniceanu was retained by Neufeld and SOUND in or about the spring of 2002, and paid $3,500 to review the WDS Traffic Assessment and provide a “letter report.” (Tr. 547-48, 552-54.) Dr. Horodniceanu did not himself, nor did anyone under his supervision, actually perform a traffic study or conduct any traffic counts. (Tr. 552-54.) Gabriele acknowledged at trial that Dr. Horodniceanu “didn’t, you know, render an opinion per se.” (Tr. 832-33.) Rather, Dr. Horodniceanu simply identified purported “technical flaws” or “holes” in the WDS Traffic Assessment. (Tr. 563, 587.)

146.Even in that limited capacity, however, Dr. Horodniceanu never personally reviewed the Capacity Analysis Work

*520

sheets that set forth the analysis underlying the WDS Traffic Assessment, and which are attached thereto. (Tr. 555.) Dr. Horodniceanu never personally visited the Orienta Point area during the peak hours as identified in the WDS Traffic Assessment. (Tr. 548-49, 558.) Nor did Dr. Horodniceanu have any discussions with any ZBA members outside of the two ZBA hearings at which he spoke. (Tr. 582-83.)

147. Dr. Horodniceanu also did not review any drafts of the May 13 Resolution and did not know that the ZBA was relying on his comments in denying the Application.

(Id.)

The ZBA members did not even know how Dr. Horodniceanu’s credentials compared to those of Divney. (Mgrditchian Dep. at 86-88; Gabriele Dep. at 90-93.) The public record before the ZBA does not (nor does any evidence adduced at trial) reveal any reasonable basis for the ZBA to credit the opinions of SOUND’s expert over those expressed by WDS’s expert or the ZBA’s own expert.

46

148. The Resolution further notes that many of the inconsistencies were discovered by the “new board members”: “This Board also recognizes that the Board’s own consultant [BFJ] did not discover many of the detailed inconsistencies of the traffic report, which were only uncovered after a thorough reading of the traffic study by the new Board members.”

47

(PL Ex. 4 at F-9.) Gabriele confirmed that the “new Board members” referred to in this statement were himself and Jackson. (Tr. 1359.) Neither Jaekson nor Gabriele (nor any other ZBA member) is a traffic expert.

48

(Tr. 861, 863, 892, 1338; Pl.Ex. 81 at 12, 13.) As between the two of them, Jackson testified that he does not have “the same details or understanding [as] Mr. Gabriele,” who “came up with the specifics” as to the traffic issues identified in the Resolution. (Tr. 1360.)

*521

149. Gabriele, however, does not know how a traffic study is performed (Tr. 892); had never before reviewed a single traffic study (Tr. 991); and did not understand the Capacity Analysis Worksheets underlying the WDS Traffic Assessment. (Tr. 945-46). Gabriele offered the following testimony:

Q. ... Now we’ve'just established you don’t know how a traffic study is done, do you?

A. That’s correct.

Q. You don’t know how to perform one. Hence, you don’t know what counts are taken and how that gets converted into peak hour data and passenger car equivalent, or anything like that; right?

A. Correct.

49

(Tr. 991.) In fact, at the final ZBA hearing before the vote to deny the Application, Gabriele reiterated that he was “not ... an expert in traffic study” and reviewed the WDS Traffic Assessment “purely as a layman.” (Pl.Ex. 81 at 14;

see also id.

at 12 (“I am not an expert when it comes to traffic.”).)

150. Gabriele nevertheless concluded that there were “inconsistencies” in the WDS Traffic Assessment without consulting with the ZBA’s own traffic experts or seeking clarification from WDS. (Tr. 840-41, 992-93; Gabriele Dep. at 94-95.) However, as discussed below, these purported “inconsistencies” catalogued in the Resolution were largely errors made by Gabriele (and the ZBA) in interpreting the WDS Traffic Assessment, and not errors or inconsistencies in the WDS Traffic Assessment itself.

151. Based on these facts and the remainder of the extensive record, the Court finds that the ZBA’s decision to: (1) disregard the WDS Traffic Assessment and Supplemental Traffic Assessment; (2) disregard the opinions of the WDS traffic consultant and its own traffic experts; and (3) rely on Dr. Horodniceanu’s comments and Gabriele’s own analysis was unreasonable and arbitrary and evidences a lack of fairness in the hearing process afforded WDS. As set forth more fully below, one of the consequences of that decision, and the failure to re-open the hearing to address the so-called “inconsistencies” in the WDS Traffic Assessment, is that the ZBA’s key traffic findings are clearly wrong. Those that are not demonstrably false are conclu-sory, and do not in any material respect detract from the conclusions of the WDS Traffic Assessment and Supplemental Traffic Assessment.

1.

The Purported Failure to Study “Key Intersections”

152. The May 13 Resolution asserts that “Dr. Horodniceanu noted that key intersections were not included in the original traffic study .... ” (PLEx. 4 at F-7.) The “key intersections” referenced are the Boston Post Road/Delancey Avenue and Boston Post Road/Rockland Avenue intersections.

50

(Pl.Ex. 72 at 84-85; Tr. 874.)

153. Gabriele acknowledged at trial that those very intersections were studied and addressed in the Supplemental Traffic Assessment provided by WDS to the ZBA on January 30, 2003 — more than three months before the May 13 Resolution was issued, and prior to Dr. Horodniceanu’s

*522

February 7, 2003 appearance before the ZBA. (Pl.Ex. 55 at 9; Tr. 350-51, 904-05.) The Supplemental Traffic Assessment concluded that the intersections had “sufficient reserve capacity to accommodate the modest increase in peak hour traffic from the WDS project and acceptable traffic operations will continue to be provided under projected Build conditions.” (Pl.Ex. 55 at 9.) The ZBA never questioned this conclusion. (Tr. 351-52, 907, 1334.) The ZBA also did not inform WDS that the Supplemental Traffic Assessment was inadequate or request that WDS perform additional traffic analyses. (Tr. 352.)

154. It is not clear whether at the time he drafted the May 13 Resolution, Gabriele had even reviewed the Supplemental Traffic Assessment. (Tr. 909.) It is clear that the Supplemental Traffic Assessment was never shown by the ZBA to its own traffic experts at BFJ. (Tr. 1123, 1144.) The ZBA also never disclosed the Supplemental Traffic Assessment to Dr. Horodni-ceanu, despite his request that he be provided an opportunity to review it. (Pl.Ex. 78 at 62-63; Tr. 564.) In fact, when shown the Supplemental Traffic Assessment for the first time at trial and asked whether it addressed his concerns that the intersections had not been studied, Dr. Horodniceanu responded: “Definitely. It appears that way.” (Tr. 566.)

155. At trial, Gabriele and Jackson suggested—in retrospect—that the real problem was that the results of the Supplemental Traffic Assessment were not integrated into the original WDS Traffic Assessment. (Tr. 841, 906-07 (“So for me to look at it ... in a microcosm quite frankly doesn’t tell me what the level of service impact is on Orienta Avenue and things of that sort.”).) The May 13 Resolution, however, does not state that WDS failed to integrate the results into the original study. (Pl.Ex. 4 at F-7.) Nor did the ZBA ever ask WDS to integrate the results before closing the hearing and denying the Application.

51

(Tr. 911.)

156. In fact, in response to a suggestion by Steven Kass, counsel to SOUND, at the February 6, 2003 ZBA hearing, Gabriele specifically refused to require WDS to undertake any such additional traffic analysis:

Mr. [K]ASS: ... May I simply suggest that in addition to the items on Jim [Staudtj’s lists, that he be requested or the applicant be requested to take a look at a systematic way, probably do a simulation of that three-part intersection. I know they have given you some material. We don’t know what it is. We have asked for a copy of it. But there is no reason why they can’t run a proper traffic model during this time with all the volumes moving through back and forth through those three-part intersections and have that available to look at.

MR. GABRIELE: Mr. [K]ass, I understand where you are coming from. But I think that your request may be bordering on unreasonable.

MR. GABRIELE: ... Mr. [Kjass, I understand the nature of your request. I think it is onerous to the applicant to have them go back and create a model and so on and so forth. While I was intrigued by [D]r. Horodniceanu’s approach of three intersections of one study, again, I think it is excessively burdensome to the applicant and perhaps you may want to take it upon your

*523

self to analyze the numbers and see if there is something that—

MR. [K]ASS: We’ll be happy to try and do that.

(Pl.Ex. 78 at 102-05;

see also

Tr. 912-13, 1329-30.) However, neither Kass, Dr. Horodniceanu nor any representative of SOUND, ever presented the ZBA with any such traffic analysis.

52

(Tr. 913.)

2.

The Allegedly Erroneous Background Growth Percentage

157. Despite the fact that the ZBA’s own traffic consultants had verified the background growth rate used in the WDS Traffic Assessment almost one-and-a-half years earlier (Tr. 1106, 1145-46), the May 13 Resolution took issue with DTS’s use of a 2% annual background growth rate:

The WDS traffic study indicates a projected growth of two percent. Dr. Hor-odniceanu indicated that he performed a traffic analysis in 1997 on the Liberty Montessori School (located at Orienta Avenue and Boston Post Road) application. Comparing his traffic count at the same intersection in 1997 with the traffic count in the "WDS traffic study indicates a growth rate at the intersection in the last three years which is in excess of 3% per annum.

(Pl.Ex. 4 at F-7.)

158. As both Gabriele and Jackson acknowledged at trial, this statement is wrong—Dr. Horodniceanu did not perform a traffic count in 1997 in relation to the Liberty Montessori School. (Tr. 568, 930-31, 1339-40.) Rather, a summary of a traffic count purportedly performed by “EIS International” was provided to Dr. Horodniceanu by Neufeld. (Pl.Ex. 51; Tr. 555-56.) Dr. Horodniceanu did not even review the summary of the traffic count purportedly performed by “EIS International,” let alone the underlying traffic counts themselves.

53

(Tr. 556-57, 573.) In fact, Dr. Horodniceanu had never heard of “EIS International.” (Tr. 568-69.) The ZBA also never asked BFJ, who had confirmed the background growth rate used by WDS

{see supra

¶ 101), whether they were familiar with “EIS International” or the Liberty Montessori School traffic study. (Tr. 931-32.) In fact, Fish and Jacquemart, who have over 20 years of experience working for the Village, had never heard of “EIS International” and were unfamiliar with the Liberty Montessori School traffic study. (Tr. 719, 931-32, 1153,1185.)

159. The background growth rate used in the WDS Traffic Assessment was provided by the NYDOT, which recommended a rate between 1.5-2% for the Boston Post Road/Orienta Avenue intersection. (Tr. 301, 352-53, 606-07;

see supra

¶ 86.) To be conservative, DTS used the higher 2% background growth rate. (Tr. 291-92,

*524

294-95;

see supra

¶ 86.) The source of the background growth rate is clearly set forth in the WDS Traffic Assessment:

[A] background growth rate of 2.0 percent per year as accepted by the New York State Department of Transportation has been applied to all existing volumes at the seventeen study intersections between 2001 and the end of 2003 reflecting the anticipated construction schedule of the proposed project.

(Pl.Ex. 3(8) at 7.)

160.Dr. Horodniceanu confirmed that the NYDOT is a generally accepted source for background growth information. (Tr. 569-70.) Likewise Fish testified that BFJ “usually consults] with the state on background growth.” (Tr. 669.) Significantly, defendants’ own traffic expert in this action, Jacquemart, had personally verified the methodology used in the WDS Traffic Assessment, did not have any disagreement with the numbers and confirmed at trial that WDS’s use of a 2% background growth was reasonable. (Pl.Ex. 67 at 28; Tr. 1145-46;

see supra

¶ 101.) Gabriele testified that his doubts regarding the 2% figure arose from his own observations of traffic outside the Orienta Point neighborhood:

I do know that having lived the better part of my life in the Village, traffic patterns have gotten much more intense. Pve seen traffic on certain streets that I had never seen before. In fact, I would honestly say that over the last three or four years, there has been — -there is traffic on my street, which was virtually unheard of. So I tended to put a little bit more stock in the higher estimate of growth.

(Tr. 930.) Gabriele conceded that he would be comfortable with WDS using a background growth rate of 2% if, as was actually the case, the range provided by the NYDOT was 1.5-2%. (Tr. 993-94.)

3.

The Alleged Failure to Use Passenger Car Equivalents

161. The May 13 Resolution states that the WDS Traffic Assessment failed to account for “heavy vehicles,”

ie.,

use appropriate “passenger-car-equivalents.” The Resolution reads:

According to Dr. Horodniceanu’s review of the traffic study, as per the February 6, 2003 letter from Carter, Ledyard & Milburn LLP, the “WDS failed to use appropriate passenger-car-equivalents (PCEs) for the buses that will be traveling through this intersection. Had WDS used the appropriate PCEs, its analysis would demonstrate an even greater impact at this intersection, one that would probably push the intersection into a level of service F .... ”

(Pl.Ex. 4 at F-7 to F-8.)

162. This statement likewise is wrong. The WDS Traffic Assessment

does

specifically account for the impact of “passenger-car-equivalents” or “heavy vehicles.” (Tr. 358.) The Capacity Analysis Worksheets, attached to the WDS Traffic Assessment, clearly disclose that the analysis took into account that 5% of the vehicles would be “heavy vehicles.” (Pl.Ex. 3(8), Capacity Analysis Worksheets at 1-3; Tr. 358-60.) The 5% “heavy vehicle” factor was based directly upon DTS’s actual traffic counts. (Tr. 359-60, 613-14.) At trial, Dr. Horod-niceanu had no reason to disagree with this figure because he had never reviewed the Capacity Analysis Worksheets. (Tr. 555; 574-75.) Gabriele did not know why there was a line item for “heavy vehicles” in the Capacity Analysis Worksheets (Tr. 945-46) because he did not understand them.

(See supra

¶ 149.)

163. Neither Gabriele nor any other ZBA member raised their concerns with their retained consultants, BFJ, who had never suggested that the WDS Traffic As

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sessment failed to take this into account. (Tr. 947;

see supra

¶ 101.) The ZB A also never raised this issue with DTS or WDS before denying the Application on May 13, 2003. (Tr. 947.)

4.

The Failure to Disclose the Level of Service Decline

164. The May 13 Resolution discusses WDS’s purported failure to distinguish between LOS “E” and “F”:

The traffic study failed to illustrate the fine distinction which exists between an intersection classified as E as opposed to F as it relates to the intersection of Orienta Avenue and Boston Post Road. This intersection at present, during the morning sampling, is currently at 74.8 seconds of delay and is projected to go to 79.5 seconds delay, which is significant because an F rating is equal to an 80 second delay or is one-half of one second more than the projected delay. Even a classification of E is recognized as unacceptable as per the SEQRA Technical Manual.

(Pl.Ex. 4 at F-7.)

165. This statement is also wrong. The WDS Traffic Assessment explicitly sets forth the various LOS classifications and the delays respectively corresponding to each. (Pl.Ex. 3(8), unnumbered page prior to Capacity Analysis Worksheets; Tr. 353-54.) In fact, Gabriele acknowledged at trial that the WDS Traffic Assessment “clearly outlines” the distinction between LOS “E” and “F.” (Tr. 976.) Ga-briele testified as follows:

Q. Now, Mr. Gabriele, do you know the difference between what’s classified as an E intersection and what’s classified as an F intersection?

A. Yes. There is a chart in the [WDS] traffic study which clearly outlines that.

(Id.)

166. Moreover, although the May 13 Resolution states that “[e]ven a classification of E is recognized as unacceptable as per the SEQRA Technical Manual,” more than a year earlier the ZBA had unanimously issued a Negative Declaration under SEQRA, which found the current and projected LOS levels “acceptable”:

The results of the [WDS Traffic Assessment demonstrated that the seventeen study intersections currently operate at acceptable overall peak hour levels of service and will continue to operate as such under projected conditions ....

As a result, the traffic volumes ... will not have a significant adverse effect on the environment.

(Pl.Ex. 97 at 2.)

167. Further, the Boston Post Road/Orienta Avenue intersection was not, as the Resolution states, “currently at 74.8 seconds of delay and ... projected to go to 79.5 seconds delay.” (Pl.Ex. 4 at F-7.) Only one movement — the westbound movement — through the Boston Post Road/Orienta Avenue intersection (during the AM Peak Hour) was projected to go to a delay of 79.5 seconds. (Pl.Ex. 3(8) at 13, tbl. 2.) The intersection as a whole (during the AM Peak Hour) was projected to remain at an LOS of “D” (with a 45.6 second delay).

(Id.)

In fact, the Project is predicted to increase traffic at the intersection during the AM Peak Hour by at most a mere 1.7% (approximately 42 vehicles); and during the PM Peak Hour by only 1.2% (approximately 30 vehicles).

(Id.

at 5, tbl. 1.)

168. Finally, even with respect to the westbound approach (during the AM Peak Hour) the ZBA’s conclusion is unfounded. The Resolution states:

Therefore, if this intersection

[ie.,

movement] were to deteriorate to a grade F (since it finds itself at the threshold of level F through projections), it is clear

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that the current utilization of this intersection is at best dangerous and any potential increase of even one vehicle per hour would represent an unacceptable and potentially dangerous increase in traffic flow ....

(Pl.Ex. 4 at F-7.) It cannot logically be deduced that “current utilization of this intersection is at best dangerous” based on the fact that the intersection “finds itself at the threshold of F through projections” of the worst-case scenario assuming (1) that the Project is built and (2) a maximum enrollment of 591 students. In fact, the conjecture that one additional vehicle per hour would result in a dangerous increase in traffic was contradicted by defendants’ own traffic expert at trial. Jacquemart counted a total of 2,694 ears traveling through the Boston Post Road/Orienta Avenue intersection during the PM Peak Hour — 150 more vehicles than had been counted by DTS in the WDS Traffic Assessment (2,544 vehicles). (Pl.Ex. 3(8) at 5; Defs. Ex. MMM at Short Report, Or-ienta Avenue & Boston Post Road, Existing PM Peak;

see supra

n. 46 (noting Jacquemart’s count took place four years after the WDS Traffic Assessment).) Nevertheless, Jacquemart testified that his review of the accident reports for the intersection revealed “nothing unusual”; they were “like any major intersection of Boston Post Road.” (Tr. 1188-89.)

5.

Concerns Over Baseball-Related Weekday Traffic

169.The May 13 Resolution also alludes to WDS’s purported failure to account for certain baseball-related traffic:

It is interesting to note that the traffic study indicated that, on the particular day that the study was taken, there was in fact a “baseball-related activity with participants arriving at the site at approximately 6:00 p.m. and departing at some time after 7:00 p.m.” (Traffic study, page 5, Section 2). If the traffic count ceased at 6:30 p.m., it is conceivable that a number of the attendees of the sporting event were not counted in the traffic count whose latest sampling took place at 6:30 p.m.

(Pl.Ex. 4 at F-8.)

170. Again, this statement is wrong. (Tr. 1355.) The latest sampling for the WDS Traffic Assessment did not take place at 6:30 p.m.; rather traffic was counted through 7 p.m., a fact that is explicitly noted in the text of the WDS Traffic Assessment: “The counts were conducted between the hours of 7:00 AM and 9:30 AM and 2:30 PM and 7:00 PM.” (Pl.Ex. 3(8) at 5; Tr. 364.)

171. Moreover, that the WDS Traffic Assessment did not count all of the traffic departing the baseball games after 7 p.m. did not impact the conclusion drawn in the WDS Traffic Assessment because the PM Peak Hour for all of the studied intersections (clearly set forth in the Application) would have long since passed and the roads would have greater reserve capacity to accommodate vehicles. (Tr. 364.)

172. Again, to the extent that this was an issue for the ZBA, the ZBA never asked for traffic count information for the 6:30 p.m. to 7 p.m. time period. (Tr. 992.) Nor did the ZBA ever ask WDS to calculate the impact on traffic of cars that may have departed the Property after 7 p.m. (Tr. 365.)

6.

Use of Property for Sunday Sports

League

54

173. The May 13 Resolution also references use of the Property for Sunday Sports League during the spring months:

*527

Significant traffic is also generated on Sundays as a result of sporting events. However, this fact was never disclosed in the traffic study, but is germane in that, while students are not present at [the Boston Post Road/Orienta Avenue] intersection on Sundays, there are certainly numerous residents who walk to Harbor Island Park and traverse this intersection during periods when the Sunday sporting events generate significant unquantified traffic.

(Pl.Ex. 4 at F-7.)

174. As Divney explained at trial, the WDS Traffic Assessment did not address weekend traffic because the purpose of the Assessment was to evaluate the impact of potential increased enrollment from the Project on the study intersections during the peak

hours

— ie., the worst-case scenario. (Tr. 365-66.) The potential increased enrollment created by the Project would directly affect traffic to and from WDS during the week' — -increased school enrollment would have a negligible effect on weekend traffic during the 10-week league season.

(Id.)

However, even if participation in Sunday Sports League increased as a result of the potential increase in WDS enrollment (and there is no evidence that it will), the surrounding roadway would have greater reserve capacity to accommodate traffic on the weekend than during weekday peak hours.

(See

Tr. 362.)

175. Moreover, even if there were evidence of congestion at the Boston Post Road/Orienta Avenue intersection on the weekend, the record is devoid of evidence that the Sunday Sports League is responsible for a significant portion of that traffic. Indeed, this is unlikely given the multiple other area recreational facilities that would themselves attract weekend traffic,

e.g.,

the Hampshire Country Club, the Beach Point Club, the Orienta Beach Club and the boat yards along Rushmore Avenue. (Tr. 891, 926, 1332.) Although Tilley testified that cars “were always going in and. out” of the Property on weekends, including groundskeeping and facilities cleaning-related traffic (Tr. 1246-47), this traffic is negligible relative to weekday traffic.

55

176. Finally, the ZBA was aware that these baseball games had been going on for years. (Tr. 918.) Special Permit 1SP-1987, granting WDS permission to construct an athletic field, explicitly contemplates use of the athletic field on Sundays, and Jackson confirmed that Sunday baseball was allowed under WDS’s special permit. (Pl.Ex. 90 at WDS 37-40, WDS 62-64; Tr. 1323.) Nevertheless, the ZBA never requested that WDS perform any traffic studies analyzing the impact of these Sunday baseball games on traffic. (Tr. 365-66.)

177. Nor have any complaints ever been lodged with the Village against WDS or WRI, whether related to the Sunday Sports League or otherwise.

56

(Tr. 918; Pl.Ex. 86 at 1-2; Pl.Ex. 97.) Despite living six blocks from WDS for 30 years, Neuringer never made any complaint against, or to, the school with respect to the Sunday Sports League, or anything

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else. (Neuringer Dep. at 12-13, 66-67.) Likewise, Mgrditchian has lived approximately half a mile to a mile from WDS for 23 years, but has never filed a complaint with or about WDS. (Mgrditchian Dep. at 20-21.)

7.

WHHS Effects on Traffic

178. The May 13 Resolution also comments on the fact that certain high school students depart the Property at 3 p.m.:

Members of the Zoning Board of Appeals, on frequent visits to the day school, noted that high school students were seen leaving the campus in their cars at approximately 3:00 pm. In the traffic study (page 5, paragraph 2) it is clearly stated that the high school dismissal peak hour was between 3:45 and 4:45 pm, indicating a significant gap in the traffic analysis, specifically as it relates to the portion of the student population on campus that drives.

57

(Pl.Ex. 4 at F-8.)

179. This statement, too, is wrong. If the PM Peak Hour for the Property— determined based on counts taken from 2:30 p.m. to 7 p.m., and which necessarily includes traffic generated by WHHS — is “between 3:45 and 4:45 PM” (Pl.Ex. 3(8) at 5; Tr. 361), the fact that some WHHS students depart the Property before its dismissal peak hour — and long before the PM Peak Hour of any of the studied intersections — does not constitute a “significant gap” in the traffic analysis. Rather, the roadway network would have more reserve capacity when these students were using the roads, and their early departure would relieve, not aggravate, congestion during heavier travel periods. (Tr. 362.) At trial, Jacquemart agreed that the departure of some high school students at 3 p.m. would not adversely impact traffic during the PM Peak Hour. (Tr. 1192.)

8.

Failure to Account for Full Complement of High School Traffic

180. The May 13 Resolution also states that the WHHS seniors had graduated by the time the WDS traffic count was taken on June 5, 2001:

Upon a more in-depth investigation of the validity of the traffic study, it was ascertained that the high school graduation took place at the end of May in the year 2001 and on page 5, Section 2, of the WDS traffic study, it states that “manual traffic counts were conducted at the 17 study intersections listed below on Tuesday June 5, 2001, when the day school and the high school were in regular session.” Research has found that while grades 9, 10 and 11 attend regular classes until the latter part of June, the high school seniors are effectively done with school, but for an occasional exam. High school students, especially seniors, represent a notable number of potential drivers and were likely not counted in the traffic sampling.

(PLEx. 4 at F-8.)

181. The WDS Traffic Assessment does erroneously indicate that the high school was in “regular session” as of June 5, 2001 (Pl.Ex. 3(8) at 5); DTS learned that high school graduation already had taken place subsequent to performing its traffic study. (Tr. 363.) However, DTS rectified this error by performing a limited recount in March 2002. (Tr. 373-74.) This recount was performed at the Property driveways during a time when seniors

*529

were in regular session, and when high school senior enrollment was actually higher; the results indicated no significant change in the traffic volumes. (Tr. 373-74, 614-15; Defs. Ex. YYY (comparing original count to March 2002 recount).) In any event, to the extent that this was an issue for the ZBA, it was not included on the Outstanding Issues List or otherwise brought to the attention of WDS before the ZBA denied the Application on May 13,2003. (Tr. 1359.)

182. As evidence adduced at trial confirmed, even assuming (1) all 33 of the high school seniors were in attendance, and (2) if in attendance had each driven their own vehicle, it is unlikely that the additional vehicles would have a significant impact on the PM Peak Hour for the Property or any of the study intersections. (Tr. 363.) The WDS Traffic Assessment indicates that the PM Peak Hour for the Property was 3:45 p.m. to 4:45 p.m., and the May 13 Resolution itself — in the preceding paragraph-— notes the ZBA members’ concern that high school students actually departed the Property earlier.

58

(Pl.Ex. 4 at F-8;

see supra

¶¶ 178-79.) WHHS President Kal-man confirmed that no more than 25% of the high school students stay past 3 p.m. for advanced placement classes. (Tr. 1386.) As defendants’ own traffic expert acknowledged, the departure of high school students earlier in the afternoon would not impact the PM Peak Hour. (Tr. 1192.)

9.

Concern Regarding a Lack of Sidewalks

183. The May 13 Resolution also comments on the purported lack of sidewalks and “inadequate” state of certain roads:

The applicant made no mention of the fact in the Traffic Study that neither Orienta Avenue or [sic] Rushmore Avenue have sidewalks. The study did mention that the roads were 20 feet wide, which is about the width of a standard two-car garage, clearly inadequate for large buses on a two-lane two-way street.

59

(Pl.Ex. 4 at F-8;

see also id.

at F-6 (“It must be noted that none of these roads has sidewalks[,] resulting in a dangerous environment for pedestrians and joggers.”).)

184. This statement is also wrong. Both Orienta Avenue and Rushmore Avenue do have sidewalks along substantial portions of their length. (Pl.Ex. 116; Tr. 360.) Although the sidewalk along Orienta Avenue ends as it approaches Sylvan Lane, at that point Orienta Avenue splits into two parts, the main road and a service road, separated by a 15-foot wide grassy median. (Pl.Ex. 116; Tr. 493, 1245-46, 1331.)

185. Moreover, as the May 13 Resolution acknowledges, the width of Orienta Avenue and Rushmore Avenue is specifically disclosed 'in the WDS Traffic Assessment:

Orienta Avenue is a two-way, two-lane road (average width of 20 ± feet), which extends from U.S. Route 1 on the west to the vicinity of Orienta Point on the east .... Rushmore Avenue is a two-way, two-lane road (average width 20 ± feet), which extends from Orienta Avenue on the west to the Sound on the east.

(Pl.Ex. 3(8) at 2; SAF ¶ 7.)

186. Nevertheless, to the extent that this was an issue for the ZBA, nobody

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from the ZBA requested that the impact of the partial lack of sidewalks or width of the roads be studied by WDS before the Application was denied.

60

(Tr. 360.) Significantly, the WDS buses, which enter the Property via Orienta Avenue and exit via Rushmore Avenue, traverse entirely different routes.

61

(Tr. 238-39; PLEx. 116; PLEx. 3(8) at figs. 3, 4.) Moreover, the buses traveling to and from WDS are not currently full, and there is no evidence that the Project will necessarily result in any increase in bus traffic to or from WDS.

62

(PLEx. 73 at 28; PLEx. 81 at 34; Defs. Ex. TT at 4.)

10.

Pedestrian Traffic

Concerns

63

187. The May 13 Resolution also alludes to pedestrian traffic at the west end of Orienta Point, about eight-tenths of a mile from WDS:

This intersection [Boston Post Road/Or-ienta Avenue] is heavily used by pedestrians in the afternoon, particularly high school students walking to the playing fields at Harbor Island Park from Ma-maroneck High School.

(PLEx. 4 at F-7.)

188. There is no evidence in the public record (and none was adduced at trial) as to how often the games at Harbor Island Park take place or how many people attend these games.

(Compare

Tr. 1346 (Jackson speculated 30 to 40 student athletes traveled to the park from Mamaroneck High School),

with

Pl.Ex. 81 at 48 (Gabriele noting fellow ZBA member’s concern “that you got hundreds of students that walk through that main intersection going to sports fields in Harbor Island on a daily basis right at prime traffic”).) There also is no evidence that traffic resulting from the Project will in any way affect these games or the students who participate in or attend them. In fact, the record is to the contrary.

*531

189. The games at Harbor Island Park commence between 3 p.m. and 3:30 p.m. and students make their way through the Boston Post Road/Orienta Avenue intersection between approximately 2:45 p.m. and 3:30 p.m. (Tr. 1344-45.) However, WDS students are not dismissed until 4 p.m., and there is no overlap between the game-related pedestrian traffic traveling to Harbor Island Park and the PM Peak Hour for the Property, which is 3:45 p.m. to 4:45 p.m.

64

(Tr. 106, 1344-45.) Nor is there any evidence that these games conclude before the PM Peak Hour for the Property has ended.

190. Moreover, the PM Peak Hour for the Boston Post Road/Orienta Avenue intersection does not commence until 5:15 p.m. (Pl.Ex. 3(8) at 5.) Any traffic leaving the Property, or pedestrian traffic traveling to/from Harbor Island Park, before the PM Peak Hour would be passing through the intersection when the intersection had more reserve capacity to absorb it. (Tr. 362.)

11.

WDS’s Purportedly Willful Attempt to Mislead the ZBA

191. The ZBA accuses WDS of attempting to willfully mislead it by including a “very clear misstatement of the facts” in the WDS Traffic Assessment:

Lastly, with respect to the traffic study, it appears that there may have been a willful attempt to provide inaccurate information to the Zoning Board of Appeals. A very clear misstatement of the facts appears on page 6 of the Traffic Study where, in the first paragraph of the text, it indicates “that the highest AM peak hour activity for the subject site occurs between 7:45 to 8:45 AM (131 entering and 77 exiting vehicles)... ”, when in fact sampling 17, which appears on the same page of the traffic study immediately above this quote, indicates that 384 vehicles enter the subject site during this hour.

(PLEx. 4 at F-8.)

192. This also is wrong. There was no inaccurate information, much less a “willful attempt to provide inaccurate information” to the ZBA; rather, the ZBA’s accusation was based on its own mistake of fact. The Table at pages 5-6 of the WDS Traffic Assessment indicates that at Intersection No. 17 (the WDS Entrance), a total of 384 vehicles

pass through the intersection.

(Pl.Ex. 3(8) at 5-6; Tr. 367.) Of these 384 vehicles that pass through the intersection, only 131 vehicles enter the Property. (Pl.Ex. 3(8) at 6; Tr. 367.) Indeed, the paragraph containing the alleged “clear misstatement” begins by stating that the traffic volumes in the summary table represent “[t]he total existing traffic volumes recorded at the seventeen study intersections during peak hours.” (Pl.Ex. 3(8) at 5.) That paragraph also refers to Figure No. 1 of the Traffic Assessment Appendix (Existing Traffic Volumes (2001) AM Peak Hour), a diagram that clearly illustrates 384 vehicles passing through the intersection but only 131 entering the Property. (Pl.Ex. 3(8) at fig. 1.)

193. Defendants acknowledged at trial that this finding was based on the ZBA’s own misreading of the WDS Traffic Assessment. (Tr. 950, 952, 1355-57.) Jackson, for example, testified as follows:

Q. [S]o what was a — in the resolution indicated to be a willful attempt to provide inaccurate information and a very clear misstatement by Westchester Day School turned out to be, in fact, a mistake in the resolution, correct?

A. Yes. Partially.

*532

Q. ... [D]id the Westchester Day School represent to you that only 131 vehicles entered the property when, in fact, 384 vehicles were entering the property?

A. To my knowledge, no.

Q. That was a mistake in the resolution, correct?

A. Okay.

(Tr. 1356-57.) The court finds wholly unconvincing Gabriele’s and Jackson’s attempts at trial to downplay their mistake by attributing their confusion to WDS’s alleged failure to provide the ZBA with requested information. This Court has already determined that WDS never refused a ZBA request to provide it with more traffic information.

(See supra

¶¶ 104, 121, 153, 156.)

194. Significantly, at no time before including this serious charge in the Resolution did the ZBA ever raise it with its own traffic experts, let alone WDS. (Tr. 949.) Gabriele acknowledged so much at trial:

Q. Did you ever discuss the information that you claimed was inaccurate or a misstatement with your consultant, Mr. Fish?

A. No.

Q. Did you ever discuss it with Mr. Divney at the hearing?

A. No.

(Id.)

12.

“As-of-Right” Traffic

195. The May 13 Resolution also purports to compare the vehicular traffic associated with WDS’s and WHHS’s use of the Property to that resulting from an “as-of-right” development:

If this property were to be developed in an as-of-right fashion, it is likely that the 27 acre parcel would yield approximately 50 residential lots with each home having an average of three vehicles. These homes would generate approximately 150 vehicles coming and going on a particular day (assuming all of them traveled within the same time frame) which is in stark contrast to the 384 vehicles which pass through the Westchester Day School entrance between the hours of 7:45 and 8:45 a.m. as per WDS traffic study, page 6, line item 17.

(Pl.Ex. 4 at F-7.)

196. This also is wrong. As set forth above, and as defendants now acknowledge, the statement that “384 vehicles pass through the Westchester Day School entrance between the hours of 7:45 and 8:45 a.m.” is based upon the ZBA’s own misreading of the WDS Traffic Assessment.

(See supra

¶¶ 192-93.) In fact, 131 vehicles enter the Property during the AM Peak Hour, less than the Resolution estimates would be generated if the property were developed “as-of-right” for residential use. (Pl.Ex. 3(8) at 6, Traffic Assessment Appendix Figure No. 1 (Existing Traffic Volumes (2001) AM Peak Hour).)

197. There is no evidence that the ZBA discussed this calculation with its traffic experts at BFJ. (Tr. 949.)

13.

Additional Requested Traffic Studies

198. The May 13 Resolution finds “[m]ost disturbing” WDS’s supposed refusal to provide the ZBA with enhanced traffic studies:

Most disturbing, however, is the fact that most questions posed with respect to expansion or clarification of traffic study results were met with a total unwillingness of the applicant to provide enhanced studies when concerns were raised.

(Pl.Ex. 4 at F-9.)

199. Defendants, however, conceded at trial that WDS did not in fact refuse to

*533

conduct any traffic studies requested by the ZBA.

(E.g.,

Tr. 908-09.) In fact, in January 2003, WDS had provided the ZBA with a Supplemental Traffic Assessment addressing two intersections not previously requested to be studied by the ZBA’s own consultants. (Pl.Ex. 55 at 9.) As discussed above, Gabriele — who personally drafted this finding of fact — declined to require WDS to perform any further traffic analysis on the ground that it would be “onerous” and “excessively burdensome.” (Pl.Ex. 78 at 105;

see supra

¶ 156.)

14.

Public Safety and the Mitigation of Potential Traffic Impacts

200.Defendants asserted at trial that its traffic concerns represented a threat to public health, safety and welfare, even though the Resolution contains no express statement to that effect. In any event, the evidence does not support such an assertion, and no rational decisionmaker could conclude otherwise. SOUND’S own expert, Dr. Horodniceanu, testified at trial that traffic in and of itself does not pose a threat to the safety of residents of Orienta Point: “Traffic is not normally a threat. It’s just, it’s just a phenomenon.” (Tr. 563.) Likewise, Divney testified that congestion does not in and of itself pose a threat to safety:

I don’t believe that traffic volume in and of itself represents a threat to safety.

The safety of an intersection has more to do with its design rather than the volume, and the presence of proper traffic signals and devices that can control the traffic. So volume in and of itself is not a matter of safety.

(Tr. 354-55.) Finally, Jacquemart’s review of accident reports for the allegedly problematic Boston Post Road/Orienta Avenue intersection revealed “nothing unusual.” (Tr. 1188-89.)

201. Nevertheless, the record before the ZBA as of May 13, 2003, and evidence adduced at trial, plainly demonstrate that there are ways to mitigate existing or projected increases in traffic congestion. Dr. Horodniceanu, Jacquemart and Divney all acknowledged that difficult -traffic conditions can be mitigated by, for example, retiming traffic lights; widening the approaches; adding turning lanes; re-routing traffic; a more aggressive busing program; or an enrollment cap. (Tr. 319, 583-84, 1174-75.)

202. The ZBA was aware that potential traffic impacts could be mitigated when it denied the Application. Dr. Horodniceanu clearly informed the ZBA that potential traffic impacts could be mitigated when he presented to the ZBA on February 6, 2003.

(E.g.,

Pl.Ex. 78 at 69-70.) Dr. Horodni-ceanu made, among others, the following statements:

MR. NEURINGER: .... Are there potential mitigating things that can be done?

MR. HORODNICEANU: I think in theory I can give you a laundry list of stuff.

MR. NEURINGER: No, I don’t want to know what. I just want to know if.

MR. HORODNICEANU: Yeah. The answer is yes. The question is ... how many, the question is, you know, the trade off that exists, is there enough land to do anything, can you change the traffic signal timing. I mean these are all things that can be looked at and ought to be looked at....

I believe that there are ways to tweak the system, to look at that and potentially they require additional — one example is you may want to put on Rockland another traffic signal and then coordinate it with the other two so they work in conjunction with each other. So

*534

there are many ways to skin a cat here.

65

(Id.)

203. In the months leading up to the May 13 Resolution, the ZBA’s own traffic experts also had repeatedly suggested that any potential impact of the Project on traffic could be reasonably mitigated through an enrollment cap and a traffic management plan. (Pl.Exs. 53, 58, 102.)

B.

Parking

204. The May 13 Resolution states that the Project did not provide adequate parking and that WDS failed to seek a variance for the number of parking spaces proposed in the Application:

The proposed construction calls for an additional 81 spaces resulting in a total of 177 spaces. However, the proposed building will have an additional 25 classrooms which will require an additional 200 spaces plus 22 employees (as reported in section 6, page 4, of the submission) thus requiring a total of 222 new spaces. The proposed site plan indicates the existence of a total of 169 spaces once the project is completed. Therefore, the project as proposed would have a total deficiency of at least 228 (perhaps as many as 307) parking spaces which in effect would require a variance for the project as proposed. No variance was ever requested or mentioned by the applicant.

(Pl.Ex. 4 at F-10.)

205. The implication that the proposed building will result in 25 additional classrooms at WDS is patently false. The Application provides for the decommissioning of 13 existing classrooms in the Castle, so that the net increase in classrooms is only 12. (SAF ¶ 17; Pl.Ex. 3(4) at 2.)

206. At no time before the May 13 Resolution was issued did the ZBA inform WDS that the Project provided for insufficient parking or required any parking variance. (Tr. 727-28, 737, 743-44, 789-90, 934-35.) Gabriele acknowledged that the ZBA never told WDS that the proposed parking was noncompliant. (Tr. 934.)

207. In fact, the finding in the May 13 Resolution was inconsistent with several earlier determinations (including by the ZBA itself) that the proposed parking complied with zoning, as well as repeated requests that WDS reduce the number of parking spaces.

208. First, the Village Building Inspector specifically approved of WDS’s methodology for calculating parking under the Village Code. (Tr. 727-28, 738, 789, 1362;

see supra

¶ 74.)

209. Second, BFJ confirmed that the parking provided for by the Project was zoning compliant. (Pl.Ex. 41 at 3.) In fact, BFJ recommended a reduction in the number of parking spaces:

The expansion requires a total of 70 spaces to meet the Village Zoning Code and the applicant is providing 81 spaces. There are several issues raised by the parking:

*535

2.

The excess spaces might be shown on the plans but not paved with asphalt. A porous pavement material might be used for the excess spaces.

(Id.

at 3.)

210. Third, the WCPB also determined that the proposed parking was zoning compliant and recommended a reduction in the number of spaces:

Parking.

The site plan shows that the existing parking lot containing 96 spaces will be expanded by 81 spaces to hold accommodations for 177 automobiles. According to § 342-56 of the Code of the Village of Mamaroneck, 4 spaces per classroom must be provided plus 1 additional space for each teacher and employee. In this case, although 25 new classrooms are being provided by the construction of this new building, 13 existing classrooms are being decommissioned to be used for other purposes. Because of this, there is only a net gain of 12 classrooms. According to page 5 of the Memorandum in Support of Application for Special Permit Modification, “It is estimated that if all new classrooms were filled, there would be an increase of 22 new teachers and staff.” Taking this into account, along with the net gain of 12 classrooms, 70 new parking spaces would be required.

... [Wjhether the school enrollment grows or not, it is apparent that the number of ears entering the school property to park there will not likely increase by 70. Nor will it likely increase by 81, which is the number of spaces proposed by the applicant. Because this new parking lot makes up a significant portion of the 1.40 acres of new impervious surface that is proposed for the site, the Village should consider a reduction in the amount of parking spaces required and encourage the applicant to reduce the number of spaces proposed.

(Pl.Ex. 39 at 1-2.)

211. Fourth, in the Negative Declaration — still in effect as of May 13, 2003 — the ZBA itself confirmed that the parking was zoning compliant:

The environmental concern regarding parking is to be sure there are an adequate number of parking spaces for the existing and proposed uses, while at the same time preserving the existing mature trees on site and eliminating excess impervious surfaces. The Village Code requires 70 parking spaces to be added for the proposed project. The applicant has proposed 79 spaces. Applicant proposes to create a grass area for temporary overflow parking and to “bank” an unpaved area for 26 of the parking spaces in the event a demand for such spaces occurs.

As a result, the ... propo

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