Full opinion text
MEMORANDUM OPINION BUCHMEYER, Chief Judge. Approximately twelve miles east of the central business district of Dallas lies the aptly-named town of Sunnyvale. Nestled in the midst of towns defined by the shopping malls and dense apartment development for which the Dallas Metropolitan Area has become famous, Sunnyvale presents a stark contrast. It is a beautiful, rural, Texas town with almost 11,000 acres of rolling hills and green grassland and only 2,000 residents. Sunnyvale has no shopping malls and no apartment developments. The secret to Sunnyvale’s success is its unusual zoning laws, including an outright ban on apartments and a one-acre zoning requirement for residential development. It is these zoning laws, allegedly enacted by the residents of Sunnyvale to preserve their rural lifestyle, which are being challenged by Plaintiffs on the grounds that they were enacted with the intent of excluding minority families from living in Sunnyvale and with the effect of prohibiting the development of multi-family housing within Sunnyvale’s town limits, an effect which falls disproportionately on African-Americans looking for housing in the Dallas Metropolitan Area. Plaintiffs also challenge the Town’s refusal to approve the planned development application submitted by Plaintiff Hammersmith Construction Co., Inc. Plaintiff-Intervenors Walker Project, Inc. and Hammer-Smith Construction Co., Inc. (“Plaintiffs”) allege that Defendant Town of Sunnyvale (“Sunnyvale”) has engaged in racially discriminatory zoning and planning practices in violation of the Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601 et seq.; the Civil Rights Act of 1866, as amended, 42 U.S.C. §§ 1981, 1982; the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, and the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d. Plaintiffs also allege that Sunnyvale’s ongoing zoning and planning practices inhibit and obstruct the desegregation of Dallas’s low-income housing programs, as ordered by this Court in the consent decree approved on January 20, 1987 in Walker v. HUD, CA 3-86-1210-R (N.D.Tex., J. Buchmeyer). Plaintiffs seek injunctive and declaratory relief, costs, and attorneys’ fees. The Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 3613. This case came before the Court for a four-day bench trial beginning on October 20, 1997. Having considered the evidence and argument submitted at trial and the written submissions of the parties, the Court concludes that Sunnyvale’s actions in maintaining a one-acre zoning ordinance, in enacting a resolution banning apartments, and in refusing to consider the rezoning application of Hammer-Smith Construction Co., Inc., have a discriminatory effect on African-Americans and are motivated by a discriminatory purpose, all in violation of 42 U.S.C. §§ 1981, 1982, 1983, 2000d, and 3604. This opinion will first discuss the applicable law governing race discrimination claims based on zoning and planning decisions. Next, it will state this Court’s findings regarding the credibility of the witnesses who testified at the four-day, non-jury trial. Then, it will state this Court’s findings of fact, which will essentially be a history of zoning and planning decisions in the Town of Sunnyvale. Finally, the opinion will close with this Court’s conclusions of law and choice of remedies. I. THE LAW APPLICABLE TO HOUSING DISCRIMINATION CLAIMS Plaintiffs have asserted claims under both the Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601 et seq., and various Civil Rights Acts, as amended, 42 U.S.C. §§ 1981, 1982, 1983, and 2000d. The standards required to prove liability under these statutes differ. The Fair Housing Act expressly prohibits discrimination in the rental or sale of a dwelling on the basis of race, color, religion, sex, familial status, or national origin. See 42 U.S.C. § 3604(a). The Act has been interpreted to prohibit municipalities from using their zoning powers in a discriminatory manner, that is in a manner which excludes' housing for a group of people on the basis of one of the enumerated classifications. See Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff'd 488 U.S. 16, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988); United States v. City of Black Jack, 372 F.Supp. 319, 327 (E.D.Mo.), rev’d on other grounds, 508 F.2d 1179 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975). The Fifth Circuit has established that plaintiffs suing under the Fair Housing Act may establish liability by showing intentional discrimination or by showing that the defendant’s acts have a significant discriminatory effect. See Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir.1996) (“a violation of the FHA may be established not only be proof of discriminatory intent, but also by a showing of significant discriminatory effect”); Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir.1986) (“a violation of section 804 of the Fair Housing Act may be established not only by proof of discriminatory intent, but also by a showing of a significant discriminatory effect.”); United States v. Mitchell, 580 F.2d 789, 791 (1978) (“[t]he Fair Housing Act pro-Mbits not only direct discrimination but practices with racially discouraging effects”). In contrast, plaintiffs suing under Sections 1981, 1982, 1988 and 2000d are required to prove discriminatory intent. See Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997) (plaintiff must demonstrate intentional discrimination for racial discrimination claims brought under § 1983 and § 1981); Hanson, 800 F.2d at 1386 (5th Cir.1986) (proof of discriminatory intent required for § 1981 and § 1982 claims); Guardians Ass’n v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 611, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (recovery under § 2000d requires showing of discriminatory intent). Section 1981 prohibits race discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. Section 1982 prohibits race discrimination in the inheritance, purchase, sale, holding and conveyance of real and personal property. See 42 U.S.C. § 1982. Section 1983 prohibits state officials from depriving individuals of rights, privileges, or immunities secured by the Constitution and federal law. See 42 U.S.C. § 1983. And Section 2000d prohibits discrimination on the basis of race, color or national origin against beneficiaries of federally funded programs. See 42 U.S.C. § 2000d. A. Discriminatory Effect Discriminatory effect may be proven by showing either (1) “adverse impact on a particular minority group” or (2) “harm to the community generally by the perpetuation of segregation.” Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926, 937 (2nd Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988); see also, Summerchase Ltd. Partnership I v. City of Gonzales, 970 F.Supp. 522, 527-28 (M.D.La.1997). The Second Circuit’s decision in Huntington is directly on point and has been accepted as the leading opinion on Fair Housing Act challenges to zoning ordinances. See 1 Rodney A. Smolla, Federal Civil Rights Acts § 3.07[4] (3rd ed. 1997) (“In Huntington Branch, NAACP v. Town of Huntington, the Second Circuit, in an opinion later affirmed per curiam by the Supreme Court, issued the most important zoning practice decision to date under the Fair Housing Act”). In Huntington, the Town of Huntington had enacted a zoning ordinance which restricted private construction of multi-family housing to a narrow urban renewal area and had also refused a non-profit developer’s request to rezone a parcel of land located outside the urban renewal area, on which they wished to develop an integrated, multi-family, subsidized apartment complex. The Town argued that the ordinance was designed to encourage private developers to build in the deteriorated, urban renewal area. Plaintiffs challenged both the zoning ordinance itself and the Town’s refusal to rezone the particular parcel of land. See Huntington, 844 F.2d at 938 (2nd Cir.). The Second Circuit found that the Town’s zoning ordinance had both a “seg-regative effect” and an adverse impact on African Americans. See Huntington at 937-38. In concluding that the zoning ordinance tended to perpetuate segregation, the Court pointed out that “Huntington’s zoning ordinance, which restricts private construction of multi-family housing to the largely minority urban renewal area, impedes integration by restricting low-income housing needed by minorities to an area already 52% minority.” Id. In its adverse impact analysis, the Court relied on the following figures contained in Huntington’s Housing Assistance Plan for 1982-1985: 7% of all Huntington families needed subsidized housing, while 24% of the black families needed such housing.... Similarly, a disproportionately high percentage (60%) of families holding Section 8 certificates from the Housing Authority to supplement their rents are minorities, and an equally disproportionate percentage (61%) of those on the waiting list for such certificates are minorities. Huntington at 938; see also, United States v. Mitchell, 580 F.2d 789, 791 (5th Cir.1978) (“[t]he fact that a large majority of Mitchell’s black tenants were clustered in a defined area is highly probative of a § 3604(a) violation. Statistics, although not dispositive, ‘have critical, if not decisive significance.’ ... The district court’s decision, based on statistical evidence and evidence of actions that effectively confined blacks to a section of the complex, is therefore consistent with the requirements of § 3604(a).”) (internal citations omitted). Once the plaintiff has made out a prima facie case of discriminatory effect, by demonstrating adverse impact on a particular minority group and harm to the community generally by the perpetuation of segregation, the burden shifts to the defendant to prove a compelling government interest. Specifically, a defendant must show that (1) its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest, and (2) no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact. See Huntington at 939 (relying on Rizzo at 149). In Huntington, the Town argued that limiting multi-family development to the urban renewal area would encourage private developers to build in this area and thereby help to revitalize it. However, the Second Circuit found that less discriminatory methods, such as tax benefits, could be used to encourage private development in the area and that these more direct incentives were more likely to be effective. See Huntington at 939. In defending its decision not to rezone the particular piece of land outside the urban renewal area, the Town listed seven justifications; the Court found these justifications to be “weak and inadequate.” Id. at 940. Finally, in balancing the Plaintiffs showing of discriminatory effect against the Town’s asserted justifications, the Court noted that the scale should be tipped in the plaintiffs favor when it is seeking to enjoin interference with its own development plans rather than to compel the municipality to build the housing itself. See id. at 940 (citing to the Seventh Circuit’s decision in Arlington Heights II). B. Discriminatory Intent The Fifth Circuit’s test for finding discriminatory intent in violation of the Fair Housing Act requires plaintiffs to establish (1) a fact issue as to whether the defendant’s stated reasons for its decision are pretextual and (2) a reasonable inference that race was a significant factor in the refusal. See Simms v. First Gibraltar Bank, 83 F.3d 1546, 1556 (5th Cir.), cert. denied, 519 U.S. 1041, 117 S.Ct. 610, 136 L.Ed.2d 535 (1996) (analogizing to the discriminatory intent test for claims brought under the Age Discrimination in Employment Act). In Simms, the evidence at trial established that the plaintiff had submitted a qualified proposal seeking a commitment letter from the defendant bank for the refinancing of an existing loan on property located in a predominantly minority area. Id. at 1557. The Fifth Circuit agreed that the evidence had created a fact issue as to whether the defendant’s stated reasons for refusing to issue a commitment letter were what actually motivated the bank. However, it found that a reasonable jury could not find that race was a significant factor in the defendant’s refusal. Id. at 1557-58. The Supreme Court has established a slightly different test for measuring discriminatory intent in violation of the Equal Protection Clause. See Arlington Heights v. Metro. Housing Corp., 429 U.S. 252, 97 5.Ct. 555, 50 L.Ed.2d 450 (1977); see also, United Farm. Of Fla. H. Proj., Inc. v. City of Delray Beach, 493 F.2d 799, 811 (5th Cir.1974) (“In light of ... the changes in City Planner Smoot’s designation for the use of the area without explanation; the conflict between the City’s Master Plan designation and the county’s long-held and recently reviewed zoning designation for the subject property; ... the desperate need for low income housing for farmwork-ers; and the concentration of almost all low income housing in a segregated area, we are convinced that the City failed to meet its burden of proving that its refusal was necessary to promote a compelling governmental interest, and thus that the city officials have deprived the farmwork-ers of equal protection of the law under the fourteenth amendment.”). In Arlington Heights, a nonprofit development corporation brought suit under the Fourteenth Amendment and the Fair Housing Act, based on the Village’s denial of its request for rezoning from single-family to multiple-family, in order to build a racially integrated, low and moderate income housing project. See Arlington Heights v. Metro. Housing Corp., 429 U.S. at 254, 97 S.Ct. 555, 50 L.Ed.2d at 457 (1977). While the Supreme Court refused to consider the plaintiffs Fair Housing Act claim, on the grounds that the Seventh Circuit’s opinion had not reached this claim, it did establish a multifactorial test for proving discriminatory intent under the Equal Protection Clause. In the absence of direct evidence of discriminatory purpose, courts may consider the following: (1) discriminatory impact; (2) the historical background of the challenged decision; (3) the specific sequence of events leading up to the decision; (4) any procedural and substantive departures from the norm; and (5) the legislative or administrative history of the decision. See id. Once a plaintiff has introduced sufficient evidence to establish discriminatory intent, the burden of proof shifts to the defendant to establish that the same decision would have resulted even had the impermissible purpose not been considered. See id. at 271, n. 21, 97 S.Ct. 555. II. THE CREDIBILITY OF THE WITNESSES These are the Court’s credibility determinations concerning the principal witnesses who testified at the four-day, non-jury trial. These determinations are based upon standard credibility factors, including the manner in which each witness testified, any inconsistencies in the testimony, whether the witness was impeached or confused, and whether the witness had some reason not to be truthful. A. Plaintiffs’ Witnesses 1. James L. Northrup testified about a business partnership he entered into with the Mayhew family in the mid-1980’s for the purpose of submitting a planned development application to the town of Sunnyvale. In the course of assembling the necessary land for the Mayhew Ranch Planned Development application, Northrup met with a man named Robert Williams who was a member of the Sunnyvale Town Council and who managed a piece of property adjoining the Mayhew’s property. Northrup testified about a conversation he had with Williams on or about November 29, 1985 during which Williams said that he supported one-acre zoning because it kept “niggers” out of Sunnyvale. Northrup’s testimony concerning his conversation with Williams is admitted, not for its truth, but to show Northrup’s state of mind at the time of the conversation. See FedR. Evid. 803. The Court credits Northrup’s testimony. 2. Craig Gardner, executive director of The Walker Project, Inc. (“WPI”) since 1991, testified about a meeting held in 1992 between Gardner, then Sunnyvale Mayor Paul Cash, and Sunnyvale’s planning consultant, Dr. Robert Freilich, to discuss administrative complaints brought against Sunnyvale. Earlier in 1992, Gardner and the WPI had filed housing discrimination complaints with the U.S. Department of Housing and Urban Development (“HUD”) against over 30 cities in Dallas County, including the Town of Sunnyvale. The complaints, which are still pending, accuse the towns of refusing to enter into cooperation agreements with the Dallas Housing Authority (“DHA”) — agreements which would enable DHA to build affordable housing within their municipal boundaries. Gardner testified that WPI’s position is that each of the cities against which complaints were filed has housing and/or zoning practices which discriminate against racial minorities and impede the development of multifamily and other affordable housing within its boundaries. In an effort to negotiate a settlement, Frei-lich and Cash drafted a conciliation agreement which called for the construction of one to two units of affordable housing in Sunnyvale! This purported conciliation agreement was presented to Gardner during the 1992 meeting. Not surprisingly, Gardner recommended that WPI’s Board of Directors vote down Freilich’s proposal, which they did. The Court found Gard-ner’s testimony to be credible. 3. Reginald Douglas Smith is the president and general manager of Hammer-Smith Construction Co. (“Hammer-Smith”), a real-estate development company and a Plaintiff-Intervenor in this case. Smith, who is African American, and Hammer, who is white, started Hammer-Smith around 1984. In the summer of 1988, Hammer-Smith submitted a planned development application to the Town of Sunnyvale seeking zoning changes for the construction of affordable single and multifamily housing. Smith testified that the first time he had discussions with anyone concerning the development of property in Sunnyvale was in June 1988, when he received a phone call from James Northrup, whom he had known since the mid-1970’s and whom he knew to be affiliated with the unsuccessful Mayhew Ranch Planned Development (“MRPD”) application. Northrup proposed that Hammer-Smith and Northrup’s company enter into a partnership for the purchase of approximately 342 acres of the Mayhew tract — land which had previously been designated in the MRPD application as suitable for multi-family and single-family cottage lots. Hammer-Smith agreed and submitted its application for planned development approval to the Town of Sunnyvale in July 1988, accompanied by the impact studies provided to the town in the unsuccessful MRPD application. Although the Town initially told Smith that the Hammer-Smith application was complete, it subsequently tabled the application and demanded that Hammer-Smith pay the Town $22,800 for further impact studies, even though the land which comprised Hammer-Smith’s planned development had already been extensively analyzed by the Town’s engineer and other consulting engineers as part of the earlier MRPD application. The Hammer-Smith application was accompanied by a letter dated June 11, 1988 from Smith to Sunnyvale Town Manager Robert Ewalt, which specifically identified Hammer-Smith as a minority-owned business and a builder of Section 8 housing. Had its application been approved, Hammer-Smith intended to begin developing the multifamily and single-family housing immediately, which would have resulted in the completion of the multifamily units in 1995 and the single-family units in 1998. The Court found Smith’s testimony to be credible, forthright and direct. B. Defendant’s Witnesses 1. Robert Ewalt, who has resided in Sunnyvale since March 1979 and has served as Town Administrator since December 1983, testified about his personal knowledge of the municipal operations of the Town, including the Town’s physical facilities and municipal services. Ewalt also expressed personal knowledge regarding the extent to which social, recreational, educational, commercial and health facilities services were present in Sunnyvale. In addition, Ewalt described current development activities and conditions in Sunnyvale, the historical and current availability of sanitary sewer service in Sunnyvale, and the historical background regarding the MRPD Application and the Hammer-Smith Application. As Town Administrator, Ewalt is responsible for reviewing development applications for completeness. Contrary to Defendant Sunnyvale’s assertion, Ewalt testified that Hammer-Smith’s proposed development application was complete when he received it. The Court credits Ewalt’s trial testimony. 2. Dr. Robert H. Freilich testified as an expert witness for the Defendant. Freilich, the founding partner of a planning and law firm in Kansas City named Freilich, Leitner & Carlisle, was initially retained by the Town of Sunnyvale back in 1991 when he served as lead appellate counsel for Sunnyvale in its Mayhew state court litigation. See Town of Sunnyvale v. Mayhew, 905 S.W.2d 234 (Tex.App.—Dallas 1994), rev’d, 964 S.W.2d 922 (Tex.1998) (hereinafter “Mayhew”); see also, discussion, supra, n. 10. Freilich has been retained by Sunnyvale in two additional matters: the attempted resolution of the 1992 HUD complaint filed against Sunnyvale by WPI, and the drafting of the Town’s 1993 planning and zoning legislation and accompanying development regulations. As a result of his previous work for Sunnyvale, Freilich has become familiar with the Town’s historical and existing zoning legislation and regulations, including the various comprehensive plans and zoning ordinances adopted by the Town since its incorporation in 1953; the MRPD Application and Executive Summary Report, with the supporting impact studies; the related Mayhew pleadings and minutes of the public meetings concerning the events giving rise to that litigation; and census and statistical data from the North Central Texas Council of Governments in Dallas County, including the 1980 and 1990 censuses and the 1980 and 1991 Dallas County Open Space Plans. He has also reviewed certain pleadings and written discovery, including depositions and deposition exhibits pertaining to this action; the Hammer-Smith Planned Development Application and related correspondence; minutes reflecting appearances by Hammer-Smith representatives in 1988 before the Town Council and the Town’s Planning and Zoning Committee (P & Z), and the transcript of those same proceedings; and the numerous documents and statutory provisions referenced or cited in his written report. Freilich was retained in the instant litigation to review a number of issues relating to whether the Town’s planning and zoning history, and related application and development approvals, have had a discriminatory effect on African-Americans. He was also asked to examine the various policies the Town has enacted from its incorporation in 1953 through the 1993 Comprehensive Plan and Zoning Ordinance, in order to establish what considerations were significant in developing the overall goals, objectives, strategies and policies pertaining to land use and development applications. In addition, he was asked to review the Town’s consideration of the Mayhew-Ranch and Hammer-Smith Planned Development applications, with due consideration given to the Fair Housing Act, and to determine the substantive rationale behind actions taken related to those projects. Finally, he was asked to determine whether the Town’s planning and zoning regulations complied with the Town’s regional fair share of population and affordable housing, and other critical governmental goals, objectives and policies. At trial, Plaintiffs attorney Michael Daniel objected to Freilich as a biased expert witness due to his ethical duty to zealously represent Sunnyvale in zoning matters based on his continuing representation of the Town in the then pending Mayhew litigation. While the Court allowed Freilich to testify as an expert witness, it found Freilich’s testimony to lack credibility. His past and ongoing representation of the Town make him both too intimately involved with the subject matter of this litigation and too steeped in bias to be an objective witness. 3. Dr. Dowell Myers testified as the Defendant’s second expert witness. There were no objections to Myers’ testimony, and the Court found it to be credible. Myers was retained by Sunnyvale (a) to develop a fair share of regional housing methodology and model that could be applied to Sunnyvale; (b) to review the development history and growth patterns in Sunnyvale to determine its historical and projected growth; (c) to review certain minutes of Sunnyvale to determine the types of issues that were being discussed with regard to growth management topics, and to determine whether those comments and topics indicated or reflected racial prejudice; and (d) to review the relevance, accuracy and proper interpretation and analysis of statistical data presented to the court by Plaintiffs from the American Housing Surveys and United States Census. Myers obtained a Bachelor of Arts degree in anthropology from Columbia University in 1972, a Masters Degree in city planning in city and regional planning from the University of California at Berkeley in 1975, and a doctorate degree in urban and regional planning from the Massachusetts Institute of Technology in 1981. Since 1988, Myers has taught a number of courses that specialize in housing, urban demography and planning. Myers’ expertise includes “housing and also the characteristics of the population that lives in houses,” “population migration, population growth, urban growth, [and] real estate .... ” Myers has served or is currently serving as an expert witness in seven cases involving housing demography issues, including (a) reporting on patterns of housing market demand and housing prices in the City of Longview, Texas; (b) reporting on growth patterns in Dallas County and the occupancy of apartment housing by different racial groups for the City of Cop-pell, Texas; (c) preparing a demographic analysis of the racial composition of the City of Desert Hot Springs, California, and in a proposed residential development; and (d) preparing an analysis of housing affordability in the City of Oceanside, California, including growth trends, and quality of life trends. Myers has worked with United States Census data for 25 years. He also authored a text book entitled Analysis with Local Census Data: Portraits of Change, published in 1992. 4. Paul Cash, who served as Mayor of Sunnyvale from May 1989 to May 1993, testified about his personal knowledge of Sunnyvale’s correspondence and communications with both the Dallas Housing Authority (“DHA”) and the U.S. Department of Housing and Urban Development. Cash testified that Sunnyvale received a letter dated January 28, 1991 from then Dallas Mayor Annette Strauss requesting that it enter into a cooperation agreement with DHA for the development of a reasonable number of assisted housing units within Sunnyvale’s city limits for persons eligible for public housing. Cash testified that he responded to Mayor Strauss by a letter dated February 4, 1991, stating, among other matters, the following: The City of Sunnyvale will not oppose any low income family housing within its city limits, assuming that the same is accomplished with consideration to the environment and the open life style that the citizens of Sunnyvale have selected for themselves. We encourage all ethnic groups and all persons to join with us in our suburban setting and to adopt the life style that our citizens have selected for themselves. Cash also asked what financial obligations were being requested of Sunnyvale, towards the provision of low-income housing, and explained to Mayor Strauss that Sunnyvale lacked many of the amenities necessary to support low-income housing development in Sunnyvale at that time. Cash’s letter to Mayor Strauss was sent after the present lawsuit was filed. Cash also testified that he received a letter dated March 6, 1992, from then Dallas Mayor Steve Bartlett once again “requesting that the City of Sunnyvale as well as other cities in the Dallas metropolitan area consider entering into a cooperation agreement with DHA to allow the development of a reasonable number of assisted housing units by DHA within your city limits for persons eligible for low rent public housing.” By letter dated March 20, 1992, Cash did not positively respond to Mayor Bartlett’s request but again requested further information before Sunnyvale would commit. The Court credits the testimony of Paul Cash. III. THE FACTS Based upon the evidence presented at trial and upon the credibility determinations just made, these are the Court’s findings of fact as required by Fed.R.Civ.P. 52. A. The Plaintiffs Plaintiff Mary Dews was employed as a tenant counselor and advocate at the Dallas Tenants’ Association, a nonprofit corporation providing information, counseling, referral and advocacy services to tenants in the Dallas area. Ms. Dews filed suit in this Court on July 8, 1988, seeking injunc-tive relief, costs, and attorneys’ fees against Defendant Sunnyvale. Unfortunately, Mary Dews passed away in December of 1991. On March 3, 1989, the Court granted permission for Hammer-Smith Construction Co. (“Hammer-Smith”) to intervene as a plaintiff. Hammer-Smith is a minority-owned, real-estate development company that had hoped to develop multi-family housing in Sunnyvale but was denied a variance from the Town’s one-acre zoning ordinance. On May 19, 1994, the Court granted permission for The Walker Project, Inc. (“WPI”) to intervene as a plaintiff. WPI is a non-profit fair housing organization created and funded by the consent decree entered in Walker v. HUD, CA 3-85-1210-R (N.D.Tex., J. Buehmeyer). WPI provides counseling and advocacy services to low-income tenants in the Dallas area. A majority of WPI’s clients are low-income, African-American households who are seeking assistance in obtaining decent, safe, and sanitary housing at a cost that they can afford to pay. Many of these families either receive financial assistance through a federal, low-income housing assistance program, such as Section 8 , or are eligible to receive such assistance. B. The Defendant Defendant Town of Sunnyvale, Texas is a general law municipal corporation organized pursuant to the laws of the State of Texas. The Town was incorporated in 1953. Sunnyvale is located in the extreme eastern portion of Dallas County, with the City of Garland located to the north and the City of Mesquite located to the south and west. Sunnyvale is flanked on the east by Lake Ray Hubbard. U.S. Highway 80 passes through Sunnyvale. Sunnyvale contains approximately 10,703 acres of land, over 6,000 acres of which are put to agricultural uses, primarily as range land for cattle. Development in Sunnyvale has been sparse because most of the land in Sunnyvale is owned by three prominent families: the Mayhews, the Luptons, and the Smiths. The Smiths own approximately 800 to 900 acres near Lake Ray Hubbard, which they have never attempted to develop. The Luptons own in excess of 1,000 acres, which currently are under review for development. And the Mayhews own approximately 1,196 acres. The May-hews have attempted to develop their land only once, with the unsuccessful Mayhew Ranch Planned Development application that became the subject of litigation resolved in state court. According to the population statistics promulgated by the North Central Texas Council of Governments (“NCTCOG”), the population of Sunnyvale was 969 in 1960, 995 in 1970, 1,404 in 1980, 2,228 in 1990, 2,300 in 1994, and 2,400 as of January 1, 1997. According to NCTCOG projections, Sunnyvale is expected to grow to a population of 4,000 by the year 2010, with a growth rate of 2.9% per year from 1990 to 2010. Sunnyvale presently has a staff of nine employees and a volunteer fire department. The Town is dependent upon its contractual relationships with the Dallas County Sheriffs Office for law enforcement; an outside company for emergency medical services; Dallas County for street and road repair; the North Texas Municipal Water District for water supply; the cities of Mesquite and Garland for sanitary sewer services; and the city of Mesquite for additional fire protection services. Sunnyvale’s municipal facilities consist of (a) one small metal building of about 4,000 square feet that serves as the Town Hall, offices all of the Town’s employees, and contains a council chambers; (b) two small 2,400 square feet fire stations, each of which has two pieces of fire equipment; and (c) a 100,000 volume library. Sunnyvale has one small park that contains a few pieces of playground equipment, but no baseball or football fields. Based on NCTCOG estimates, Sunnyvale had approximately 800 jobs in 1990. Of these jobs, an estimated 88% were in basic employment sectors (mining, construction, manufacturing, wholesale trade, transportation, communications and utilities). NCTCOG ’ projects Sunnyvale will have 1,700 jobs by the year 2010. Sunnyvale’s employment centers consist of three manufacturing and distribution companies that are all located in the southern portion of Sunnyvale, south of 1-80. The 1990 U.S. Census reported that the population of the Town of Sunnyvale was 2,228 people, including 2,094 whites of non-Hispanic origin, 16 blacks, 20 Asians, and 82 Hispanics. Thus, Sunnyvale’s population was 93.99% white and 0.72% black. The 1990 Census of Population and Housing also reported that of the 740 occupied housing units in Sunnyvale, including owner occupied and renter occupied units, 718 were white while 7 were black. Thus, the percentage breakdown of Sunnyvale’s households was 97% white and 0.95% black. C. Sunnyvale’s Zoning and Planning Laws I. The 1965 Comprehensive Plan A comprehensive plan is a guideline that sets land use policy for a municipality and provides the framework for zoning and development decisions. A plan should be monitored on an annual basis and amended every 3 to 5 years, to reflect changing conditions in the community. Under state law, once a comprehensive plan is in place, all zoning decisions must be consistent with the plan. Sunnyvale adopted its first comprehensive plan in 1965. That document provided that Sunnyvale was incorporated in 1953 for the following reasons: to forstall [sic] the community being developed in a substandard manner and to preserve the area until the time the proper development could be assured. The relatively high development standards adopted by the City has naturally resulted in little growth, but the growth which has occurred is of exceptionally high quality. This was, in fact, the intent of the original founders of the community. Their basic thought was to discourage premature development, which would have resulted if small lot developments would have been permitted without water and sewer service. The “premature development” feared by the Town was residential development planned for black households. Beginning in 1948, in response to the dire need for improved housing for black people in Dallas, the Dallas Home Builders Association Committee on Negro Housing led an effort to find unincorporated areas in Dallas County for the development of federally-subsidized “Negro Housing.” One of the first areas proposed was in the southeastern part of the County, within a mile of Mesquite’s western boundary and close to what was soon to become Sunnyvale. The incorporation of Sunnyvale in 1953 removed a large area of land as a potential site for development of housing intended for black families. The land use survey taken in January of 1965 and relied upon in the 1965 Comprehensive Plan showed that only 7.18% (907 acres) of the total amount of land in Sunnyvale (12,637 acres) was developed. Of the 907 acres of developed land, 190 acres (20.97%) were classified as single-family residential, .46 acres (.05%) were for duplexes, and another .46 acres (again .05%) were for apartments. The City had a total population of 1,060 people at that time. The 1965 Comprehensive Plan estimated the population holding capacity of Sunnyvale’s urban area to be approximately 42,000. The Plan expressly states that, “[t]he most efficient population density range is between 4.0 and 9.3 persons per acre (2,500 to 6,000 persons per square mile). Lower densities require more services and represent a high [sic] cost in streets, sewers, and water mains than are justified by the revenue received from taxation.” After repeating that the original purpose of the incorporation was to stop development of the area until “proper development could be assured,” the Plan stated that the original concept of a city served by county type roads, no sanitary sewer service, “and extremely large lots (one and two acres in size)” had served its purpose. Instead, the concept of a “rural area” was being replaced by a “complete city concept,” with parks, schools, playgrounds, retail, commercial and industrial areas. However, despite this description in the 1965 Comprehensive Plan, Sunnyvale has yet to zone any of its land for apartments. The 1965 Comprehensive Plan designated 93.67 acres for apartment development, 3,535.22 acres for single-family residential development on 12,000 square foot lots, and 2,246.38 acres for single-family residential development on estate lots. The 93.67 acres allotted for apartments constituted one-half of one percent of the total acreage in Sunnyvale. Despite this specific allocation for apartments, the “Proposed Zoning District Map” did not identify a single parcel for “Duplex or Apartments.” The 1965 Comprehensive Plan was not followed by the Town. The zoning ordinance passed on August 9, 1965 contained a zoning district map and established four single-family residential dwelling districts: R-l (minimum 40,000 square foot lots), R-2 (minimum 24,000 square foot lots), R-3 (minimum 18,000 square foot lots) and R-4 (minimum 12,-000 square foot lots). 2. The 1971 Resolution Banning Apartments On July 12, 1971, the Sunnyvale Town Council passed a resolution banning the development of apartments and town houses in Sunnyvale. The events leading up to the passage of the resolution are as follows: In August of 1970, Sunnyvale’s Planning and Zoning Committee (“P & Z”) received an inquiry from George Drum, a developer interested in putting between 5 and 600 townhouses on 89.3 acres on Barnes Bridge Road. The P & Z asked the Town Council for a joint meeting “to see how the council felt about this kind of development.” Although Drum had hoped to get a hint of the Council’s mood before going to the expense of drawing plats, the Council stated in the minutes of its meeting that nothing could be discussed without plats. Two citizens, George Tucker and T.C. Lupton, spoke in favor of the townhouses at the Council meeting. A few months later, in December of 1970, the P & Z heard a request from Leon Wilensky, a prospective purchaser of a 46.5-acre tract of land on Belt Line Road. Wilensky intended to build one- and two-bedroom apartments at a density of 20 units per acre. A vote of the P & Z on Wilensky’s request resulted in a 2-2 tie, and Wilensky’s application was tabled. Appearing before the P & Z in January 1971, Wilensky showed an artist’s rendition of the townhouses he wanted to build and answered the committee’s questions. One of the questions was, “Then the construction could be low-income housing that would be a liability to the community?” Wilensky answered “no.” A concerned citizen at the committee meeting commented that apartment complexes were difficult to police and would encourage' crime. Other citizens vocally indicated that they were “especially opposed to apartments,” due to the presumed tax increases to expand the school system and public utilities. A P & Z member, J.C. Hardie, stated that apartments would be a “[cjancer spreading in the community; A fellow P & Z member, Huey White-hurst, pointed out that the commission lacked the authority to ban apartments since there was an ordinance ostensibly permitting construction of apartments, and that the decision to ban apartments lay with the Town Council. The P & Z ultimately denied Wilensky’s application by a vote of 4-2. The Town Council took no action on Wilensky’s rezoning request except to vote for the P & Z to discuss the matter more fully. In May of 1971, Alderman L.R. “Bill” Orr moved that the council delete regulations for apartment houses from the zoning ordinance, thereby banning apartments “until such a time that we are able to come up with good specifications whereby we can really control the construction from the ground up, through supervision and ordinances.” According to Orr, such a measure would “keep our area from trashy construction.” The motion passed by a vote of 3-1, with one member abstaining. At a council meeting on June 14,1971, City Attorney William Andress advised the council that it would be better to write a resolution forbidding permits for multifamily dwellings “until such a time that Sunnyvale has sewage, better water facilities, and a better building specification for that type of construction.” The resolution banning apartments was passed on July 12, 1971. The resolution recites that although multifamily use is included in the ordinance, the town had never designated any specific area for multifamily use and feels that it is advisable to withhold designation of an area and withhold issuance of permits for apartments. The resolution provides: Section 1: That until ample municipal services can be furnished to such development, no area shall be designated, nor any application for rezoning be accepted, for Apartments or Town Houses. Section 2: That definite rules and regulations be written for the construction of this type of building prior to approval of any designated area, plat or building permit. When the council met the following month, Alderman Orr reported that he had received calls from several real estate companies “condemning” Sunnyvale’s ban. City Attorney Andress reported that he had also received calls complaining of the ban. Orr then suggested that a committee be appointed to encourage industrial development in Sunnyvale. A few weeks later, when the apartment resolution was discussed by Sunnyvale’s Planning and Zoning Commission, the resolution was given “enthusiastic approval.” There is no record that Sunnyvale ever rescinded the resolution. Although the 1987 Zoning Ordinance includes a description of an apartment district, the Zoning Map does not designate an area for apartments. The current zoning ordinance does not contain an apartment district or regulations for the development of apartments. There is no land currently zoned for apartments. One of the conditions set by the 1971 ordinance for issuance of apartment building permits remains directly under Sunnyvale’s control. The 1971 ordinance provided that no such permits would be issued until “definite rules and regulations be written for the construction of this type of building prior to approval of any designated area, plat.or building permit.” As of today, Sunnyvale has not drafted any such rules. To attract commercial businesses, Sunnyvale publishes and distributes a pamphlet to businesses and industries that might be interested in locating in Sunnyvale. The “Housing” section in the pamphlet makes it clear that the only type of housing allowed in Sunnyvale is low-density, single family housing. The apartments, presumably for the workers, are in other cities: HOUSING Located along the eastern edge of Dallas County, Sunnyvale offers a unique and distinctly peaceful living and working environment when contrasted to the fast-paced tempo of metropolitan living. Sunnyvale provides the slow-paced, friendly atmosphere of a rural area while located only twenty minutes from downtown Dallas. Sunnyvale restricts housing construction to low density, single-family dwellings requiring one-acre lots or larger. However, the widest selection of homes, apartments, condominiums, and town houses are conveniently located in the adjoining cities of Garland, Mesquite, and Northeast Dallas. 3. The 1973 One Acre Zoning Ordinance Amendment In March of 1972, the Town Council asked for an ordinance to govern the installation of septic tank systems. At a December 1972 meeting, City Engineer H.G. Howard reported that after research and contact with the North Texas Municipal Water District, he was recommending a one-acre minimum for residential lots served by septic tanks within 2,000 feet of the lake and for homes of 3,000 square feet or more. Howard added that for smaller homes on septic tanks, half-acre lots should suffice in most instances. The Town Council decided to meet with the Planning & Zoning Commission to discuss restricting new homes to one-acre lots until sewer lines become available. When the council and P & Z met to discuss lot sizes, the two groups decided a public hearing should be held to debate the issue. P & Z Chairman H.H. Hatley opened the January 1973 public hearing by explaining that discussions of “current problems in the community” had prompted his commission, the Town Council, and the city engineer to consider “upgrading” Sunnyvale’s zoning ordinance. City Engineer H.G. Howard further explained that the upgrade is necessitated by the problems of “having only septic systems, inadequate water lines for any concentrated development, as well as the school presently being at maximum capacity.” Numerous citizens spoke in favor of a minimum one-acre lot size, citing their desires for Sunnyvale “to continue to have a spacious, country living atmosphere” and their objections to “small, low-cost housing-on small building sites.” Once public discussion ceased, a vote was taken. At least forty Sunnyvale residents voted in favor of the one-acre minimum, and no one objected to the proposal. When Hatley asked the audience if they wished to lower the size of the building site if a public sewer was available, they emphatically voted no. In February 1973, the council set a public hearing on the zoning ordinance upgrade. However, at Mayor Mayhew’s suggestion, the council unanimously voted to review and approve the ordinance, as written by the P & Z, prior to the public hearing. At a March 1973 public hearing on the proposed one-acre zoning, Alderman Gibson mentioned that he and Alderman Payne “had been trying for a year and a half to get the zoning ordinance upgraded to protect Sunnyvale.” Alderman Gibson saw the ordinance as prohibiting “large type growth” that would cause increased taxes. By a show of hands, the residents present at the hearing voted 28-13 in favor of one-acre zoning. The one acre zoning ordinance was applied throughout the Town without regard to the availability of municipal water and sewer systems. It is also clear that Sunnyvale officials recognized that septic tanks were becoming less of a problem as time passed, for they initiated an effort in 1978 to change the one-acre minimum so as to provide for half-acre lot zoning. The then mayor reasoned that the zoning change would improve the tax base for Sunnyvale by attracting industry. But the proposed change was rejected amidst strong opposition. Some of the concerns expressed by opponents were school overcrowding and the desire to preserve Sunnyvale’s open space and country atmosphere — concerns that were unrelated to septic tank problems. 4. The 1986 Revision of the Comprehensive Plan On November 24, 1986, the Sunnyvale Town Council adopted a revised comprehensive plan. While comprehensive plans are intended to be updated every three to five years, the 1965 Comprehensive Plan was the first and only other plan the Town had adopted. The adoption of the 1986 Comprehensive Plan was preceded by public hearings and workshops. Sunnyvale began engaging in discussion about the need for a comprehensive land use plan as early as October of 1985. By late January of 1986, Sunnyvale had hired the planning firm of Hogan and Rasor to conduct a revision of its Comprehensive Plan and to serve as the Town’s planner. Joseph Po-biner was the principal person from Hogan and Rasor to serve as the Town’s planner. By means of a letter dated July 7, 1986, Pobiner submitted his “Draft Comprehensive Plan — Land-Use, Thoroughfare, and Population Components” to Sunnyvale’s mayor, council members, Planning and Zoning Commissioners, and the Citizen Committee members. The draft of the plan contained the following statements: The greatest amount of developed area is attributable to low density residential (13.1%), exclusively single-family detached dwelling units. However, unlike other municipalities, there are no medium-density, multi-family or mobile home residential areas. The present residential zoning requires at least one (1) acre per lot. In considering the future of the Town, the one-acre zoning must be addressed. It was instituted to maintain the ‘rural’ atmosphere in the Town and prevent urbanized development (such as has occurred in neighboring cities). However, this approach will only result in a ‘larger version’ of tract-style housing and actually detract from the atmosphere. Pobiner proposed 5,057 acres for Low Density Residential, 314 acres for Medium Density Residential, and 202 acres for Multi-family residential. Applying average densities (persons/acre) for each of these land-use types, Pobiner projected the ultimate population in each area. The persons-per-acre densities were 6.76 for Low Density Residential (LDR), 15.55 for Medium Density Residential (MDR), and 30.75 for Multi-Family Residential. The overall average density was set at 8.13 persons/acre. At the Town Council’s August 19, 1986 public hearing on the proposed Comprehensive Plan, Pobiner recommended capping Multi-Family at 15 units per acre. It was at this hearing that Pobiner informed Sunnyvale officials of the need to provide for multi-family housing in the Comprehensive Plan: [T]he reason for multi-families, in general, is that ... the City is under the auspices of the U.S. Supreme Court to provide ... a variety of housing opportunities, a variety of housing opportunities for everybody, without having, and if you’ll see on your zoning ... map that you do not provide for specific multifamily uses ... they haven’t been shown on the zoning book. You see, without providing for that you are subject to ... a lawsuit under which is called exclusionary zoning. And there have been many lawsuits filed on that in recent years all of which have gone against the cities because ... the exclusionary zoning is considered a discriminatory practice .... Pobiner suggested placing multifamily housing units in several locations where nothing else would go. He emphasized both the legal need for apartments and the very low, token amount of apartment zoning, 1% as compared to 10% or 20% for towns of similar size. Town Council member Eloise Patrick stated that the Town’s attorney had advised that while the Comprehensive Plan had to provide for some multi-family housing, “whether you actually allow it to be built out as [sic] another whole ball game.” Pobiner then recommended including multifamily housing in the Comprehensive Plan to avoid a lawsuit by the “ACLU or the NCAA, the NAACP.” Pobiner explained that it was in Sunnyvale’s best interest to allocate for multifamily housing, but that he would exclude it from the plan if so directed by the town. It was clear that Sunnyvale residents did not agree with Pobiner. During the August 19, 1986 public hearing on the new Comprehensive Plan, Sunnyvale residents made it clear that they were opposed to apartments and multifamily districts in their town. Some of their comments, as reflected by the minutes of the meeting, included: Mr. Connie Pullen: .... You’re using an example of Garland and Mesquite and they are a total disaster with their town houses and their apartments. Mesquite is allowing 28 units to the acre; Garland is completely litterated, yet you’re saying that Sunnyvale must allow us 15 units to the acre so that we can be a planned disaster as well. Mrs. Tucker: ... if the federal government ever got whiff of this town of Sunnyvale, where are all of our, where is our proportion of housing for underprivileged people? Where in the name of thunder is all of multiple housing? Where is the housing for our blacks? Or Mexicans? We don’t have it Connie. I would like to sit here and.... No we don’t. Oh come off it. We don’t have it and you know it ... This town is wide open and if we have to go to court and all of it comes out, that what we have been getting away with here for years and years and years, there isn’t going to be a backyard safe from builders who don’t give a darn. Mr. Ron Davidson: ... We’ll build that fence up, we’ll hold that gate there and as long as we can hold those Indians off, fine. And, when they bust through then we pay the price ,.. there’s an over abundance of mul-ti-family housing around here and what not like that. But, we’re boxed in ... personally, I’d rather not see any apartments or any cottage homes in Sunnyvale. Period. By September 1986, the proposed densities were considerably lower, and the amount of land designated for higher density uses had decreased. In a September 9, 1986 letter to the Sunnyvale Town Council and Town Administrator, Pobiner proposed a plan that eliminated the “Mul-ti-Family Residential” category. The Plan allocated 5,228 acres for Low Density Residential at 2 units per acre, and only 166 acres for Medium Density Residential at 5 units per acre. The Comprehensive Plan contained a new category called “Cluster Residential” with an allocation of 110- acres at 8 units per acre. Cluster Residential was essentially designated for multifamily uses, which Pobiner stated was necessary because the Civil Rights Act of 1968 required that each community provide a range of housing options for various income levels. Yet, Pobiner told the Town Council that this draft of the plan was not a solid base land plan because developers would not build at the low densities of 6 to 8 units per acre in the Cluster Residential district. Pobiner suggested that the more prudent route is to adopt a low density with a maximum of 1 to 2 units per acre, medium density with a maximum of 3 to 4 units per acre, single family detached cluster housing with 5 to 9 units per acre, and a multifamily housing with 12 to 15 units per acre. Nevertheless, by October 13, 1986, upon request by Sunnyvale to rework his proposals, Pobiner had replaced medium density areas with low density areas, eliminated most areas for multifamily, and moved the remaining multifamily, 0.4% of the total units, to various locations on the fringes of Sunnyvale. There were not enough multifamily units to meet the market for apartments in Sunnyvale. The then town attorney, Alex Biekley, explained that the plan would be difficult to defend in court without multi-family uses in the plan. The final draft of the Comprehensive Plan was presented to the Town Council for a vote on November 24, 1986. At this council meeting, Pobiner clarified that as a professional planner, it was not his intent to recommend the one-acre zoning over 90% of the town, as currently existed in the Plan. The adopted 1986 Comprehensive Land Use Plan included 5,596 acres zoned for residential use, which was classified as follows: Low Density Residential — • 4,864 acres or 86.92% of the total residential land, Medium Density Residential— 559 acres or 9.99%, Cluster Residential— 108 acres or 1.93%, and multifamily residential — 65 acres or 1.16%. The Plan was silent on recommended densities for the various land use categories. The Land Use Map placed the 65 acres of multifamily residential south of U.S. 80 in an area with no sewer service and adjacent to a flood plain. 5. The 1987 Amendment to the Zoning Ordinance On August 31, 1987, Sunnyvale considered changes to the Comprehensive Land Use Plan. One of the changes was in the location of the apartment and medium density housing in the Plan’s map. The town proposed to move the designated area for apartments to Belt Line to keep them on the perimeter of the town. Pobiner insisted that it was important for the plan to reflect apartments, medium density, and cluster density in order to shield the City from liability. In fact, in a deposition taken on May 21, 1987 in the Mayhew state litigation, Pobiner clearly voiced his opposition to one-acre zoning. He was still Sunnyvale’s planner at the time of the deposition. A summary of his deposition revealed the following: a. While he used two units per acre as the suggested density for low density residential in the comprehensive plan, he thought that two units per acre was almost to the point of being unreasonable. If the map showed low density at two and medium density at three or five units per acre, then the actual effect would be low density at four acres. b. He had been confused by Sunnyvale’s insistence on maintaining a country atmosphere since even small towns had apartments and higher density residential areas. He came to understand that the town was opposed to any density over one acre because it wanted to keep out what it termed as an undesirable element. c. He used one acre zoning solely at the direction of the Town. His recommendation was two to four units per acre for low density. There was no sound planning principle for assigning one unit per acre for such a large section of the town. d. The 1986 Comprehensive Plan was not an appropriate plan for the controlled growth of Sunnyvale. It ignored the issues raised by the need for higher density housing if Sunnyvale is to avoid fiscal deficits in the future, e. On June 10, 1986, he told the Town Council that one-acre zoning would not achieve the desired open space atmosphere and was of questionable legality. f. He was unwilling to endorse one acre zoning for low density residential given the lack of other, higher density zoned land in the Town. g. If the Town had nothing other than one acre zoning, along with nonresidential uses, there would be no question that it was exclusionary and discriminatory zoning under the criteria set by the United States Supreme Court in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and he had so advised the Town Council. h. The only good reason for one-acre zoning in Sunnyvale that he could identify was the temporary problem with the septic systems. i. Development of the Town under one-acre zoning would not result in open space, but rather, the Town would look like a large scale tract development. This opinion had been given to the Town Council. The assignment of one-acre zoning to the entire low density single-family residential classification was not realistic. j. As Town Planner, he had evaluated the Mayhew Ranch Development proposal. The only negative comment he made was that the proposed multifamily density of 22 units per acre was not a currently allowed density in Sunnyvale. The proposal satisfied all the standards and criteria for approval under the Town’s planned development ordinance and would have been consistent with the public health, safety, and welfare of Sunnyvale. k. He heard public officials state that they were afraid of public and federal or state subsidized housing. l. The existing zoning map was not in accordance with the comprehensive plan. Pobiner’s c