Bernstein v. Village of Wesley Hills (95 F. Supp. 3d 547, 2015)

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiffs are religious corporations and individuals affiliated with the Chofetz Chaim sect of Orthodox Judaism, and they allege an interest in the operation of Kiryas Radin, a religious educational institution and center for religious activity and prayer, located on 4.7 acres of unincorporated land in the Town of Ramapo (“Ramapo”) known as the Nike Site. Defendants are four Villages, each located within Ramapo, and current and former officials of those Villages. Plaintiffs bring claims under federal and state law relating to a 2004 lawsuit filed by Defendants against Ramapo pertaining to the Nike Site.

Before the Court are three Motions for Summary Judgment arising in a consolidated Action. The pending Motions pertain to surviving claims in Case No. 08-CV-156 (the “2008 Action”) and counterclaims in Case No. 12-CV-8856 (the “Chestnut Ridge Action”). Plaintiffs Mos-dos Chofetz Chaim, Inc. (“Mosdos”), Rabbi James Bernstein (“Bernstein”), Moshe Ambers (“Ambers”), Rabbi Mayer Zaks (“M. Zaks”), and Rabbi Aryeh Zaks (“A. Zaks”) (without Mosdos, the “Individual Plaintiffs”) (collectively, “Plaintiffs”) filed a Motion for Summary Judgment. (Dkt. No. 108). Defendants David A. Goldsmith (former Trustee and current Mayor, Village of Wesley Hills (“Wesley Hills”)) (“Goldsmith”), Edward B. McPherson (Trustee and Deputy Mayor, Wesley Hills) (“McPherson”), Robert H. Frankl (former Mayor, Village of Wesley Hills) (“Frankl”), Robert I. Rhodes (former Trustee, Wesley Hills) (“Rhodes”), Jay B. Rosenstein (former Trustee, Wesley Hills) (“Rosenstein”), Howard L. Cohen (Trustee, Village of Chestnut Ridge (“Chestnut Ridge”)) (“Cohen”), Jerome Kobre (former Mayor, Chestnut Ridge) (“Kobre”), Jeffrey Oppenheim (former Trustee and current Mayor, Village of Montebello (“Montebello”)) (“Oppenheim”), Kathryn Ellsworth (former Mayor, Montebello) (“Ellsworth”) (together, the “Individual Defendants”), Wesley Hills, Chestnut Ridge, Montebello (together with the Individual Defendants, “non-Pomona Defendants”), and the Village of Pomona (“Pomona”) (together with Chestnut Ridge, Montebello, and Wesley Hills, the “Villages”) (collectively, “Defendants”), filed two Motions for Summary Judgment. Pomona joined the first Motion for Summary Judgment filed by the non-Pomona Defendants, (Dkt. No. 101), and also filed its own Motion, (Dkt. No. 106).

For the reasons stated herein, Defendants’ Motions for Summary Judgment are granted, and Plaintiffs’ Motion for Summary Judgment is denied.

I. Background

The heart of Plaintiffs’ case is their allegation that Defendants colluded to file the Chestnut Ridge Action — which claimed, in relevant part, that Ramapo’s environmental review of Kiryas Radin prior to its approval was insufficient under state law— for discriminatory reasons. Plaintiffs allege that Defendants, “[hjiding behind a false fagade as protectors of the environment ... utilized municipal government authority to advance their campaign against the spread of Orthodox Jewery in the Town of Ramapo.” (Pls.’ Mem. of Law in Supp. of Mosdos Claimants Mot. for Summ. J. (“Pls.’ Mem.”) 3 (Dkt. No. 110).)

In the 2008 Action, Plaintiffs alleged claims under 42 U.S.C. §§ 1981, 1982, 1983, and 1985(3) for violations of, and conspiracy to violate, their rights under the Free Exercise, Establishment, and Free Association clauses of the First and Fourteenth Amendments, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as well as claims under the Fair Housing Act (“FHA”), 42 U.S.C. § 3604 et seq., Article I, Section 3 (Free Exercise) and Article I, Section 11 (Equal Protection) of the New York State Constitution, and § 40-c of the New York Civil Rights Law. (See Am. Compl. ¶¶ 114-154 (Dkt. No. 45).) At this stage of the litigation, the only claims remaining from the 2008 Action are the Individual Plaintiffs’ §§ 1981, 1982, 1983, 1985(3) and New York Civil Rights Law claims against the Villages and the Individual Defendants sued in their official capacities, and the Individual Plaintiffs’ New York State Constitution claims against the same Parties, except for Pomona. See Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F.Supp.2d 679, 711 (S.D.N.Y. Sept.26, 2011) (‘Mosdos II”).

In the Chestnut Ridge Action, Mosdos filed counterclaims against the Villages under 42 U.S.C. § 1983 for violations of the Free Exercise and Free Speech clauses of the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and the FHA. (No. 12-CV-8856, Notice of Removal Ex. B (“Counterclaims”) ¶¶ 368-94 (Dkt. No. 1).) The remaining claims in the 2008 Action, together with the counterclaims in the Chestnut Ridge Action, are the subject of the Motions before the Court. (See Defs.’ Joint Rule 56.1 Statement (“Defs.’ 56.1”) ¶¶ 17, 98 (Dkt. No. 102) (noting consolidation and that only the counterclaims survive in the Chestnut Ridge Action).)

In support of their claims, Plaintiffs make allegations against the Individual Defendants, claiming that they acted with a discriminatory purpose. Despite structuring their claims as against all Defendants, however, Plaintiffs make no individual allegations against Cohen, Kobre, Oppenheim, or Ellsworth. (Defs.’ 56.1 ¶¶ 157-59.) Counsel for Plaintiffs confirmed the lack of allegations at oral argument, and agreed to the dismissal of Plaintiffs’ allegations against these Defendants for that reason. While Plaintiffs also only make one allegation against each of McPherson, Frankl, and Rosenstein, namely an “‘effort to restrict the Orthodox/Hasidic Jewish population in ... Ramapo and its environs,’ ” (id. ¶¶ 158-59 (quoting Am. Compl. ¶ 100)), their primary allegations are against Rhodes. According to Plaintiffs, Rhodes “ ‘advocated fertility testing and complained about the birth rate of the Orthodox Hasidic community within ... Ramapo’ ” in a blog post he authored as chairman of an organization called “Preserve Ramapo.” (Id. ¶¶ 164-65, 173 (quoting Am. Compl. ¶ 92).) Plaintiffs contend that that Wesley Hills and Rhodes are active in, and helped found, Preserve Ramapo, which Plaintiffs allege was “‘formed to create separation and feigned plausible deniability between the elected officials advocating against the ultra-orthodox/Hasidic communities and the municipal government.’ ” (Id. ¶¶ 170-71 (quoting Am. Compl. ¶ 94).)

By Plaintiffs’ own admission, their claims at this stage of the litigation are dependent on their allegation that Defendants did not bring legal challenges against development projects that were, other than not being run by members of the Hasidic community, similar to Kiryas Radin in all material respects. (See, e.g., Pls.’ Mem. 5 (“[T]o successfully establish that [Defendants] violated [Plaintiffs’] civil rights, it is incumbent upon the [Plaintiffs] to show that [Defendants] selectively treated [Plaintiffs] in instituting their failed legal proceedings regarding Kiryas Radin....”).) It is by proving these allegations that Plaintiffs intend to show that they have been selectively treated.

A. Factual Background

Over the last several decades, Orthodox and Hasidic Jews have resided in Ramapo in increasing numbers. Beginning in the late 1960s, several Villages in Ramapo incorporated with the stated purpose of preserving existing zoning in their communities. (See Pls.’ Rule 56.1 Statement (“Pls.’ 56.1”) ¶ 7 (Dkt. No. 113); Defs.’ Joint Response to Pls.’ Rule 56.1 Statement (“Defs.’ Counter 56.1”) ¶7 (Dkt. No. 117).) In 1997, Yeshiva Chofetz Chaim of Radin (‘YCC”) purchased the Nike Site and “applied for site plan approval to use the Nike Site as a religious school and community center, with dormitories consisting of 44 units in the 12 preexisting residential buildings” on the site. In re Village of Chestnut Ridge v. Town of Ramapo, 99 A.D.3d 918, 953 N.Y.S.2d 75, 79 (2012) (“Chestnut Ridge II ”). On July 3, 2003, the County of Rockland Department of Planning issued a disapproval of the YCC proposal, “citing concerns relating to traffic and community character.” Id.

In 2000, Christopher St. Lawrence was elected Town Supervisor of Ramapo, and preparations for an update of the Ramapo’s Comprehensive Master Plan (“Comprehensive Plan”) were initiated. (Pls.’ 56.1 ¶¶ 9-10; see also Defs.’ Counter 56.1 ¶¶ 9-10.) Following the completion of an environmental review, Ramapo adopted a new Comprehensive Plan on or about January 29, 2004, which included a provision for student housing. (See Pls.’ 56.1 ¶¶ 13-14; Defs.’ Counter 56.1 ¶¶ 13-14.) Ramapo subsequently considered a zoning amendment, the Adult Student Housing Law (“ASHL”), designed to permit adult student housing, by permit, in all residential zones as an accessory to approved postseeondary institutions. Chestnut Ridge II, 953 N.Y.S.2d at 79. (See also Defs.’ 56.1 ¶ 43 (describing the ASHL as permitting “high density multi-family housing [as an] accessory to an educational institution”).) After making many of the modifications to the law recommended by the County of Rockland Department of Planning, and following the completion of a separate environmental review, Ramapo adopted the ASHL as part of a new Comprehensive Zoning Law, on or about November 22, 2004. Chestnut Ridge II, 953 N.Y.S.2d at 79-80. (See also Defs.’ Counter 56.1 ¶ 14 (discussing passage of this law).)

Prior to the adoption of the ASHL, and subject to variances, legislative action, and other applicable laws, the land on which the Nike Site is located was zoned as R-25 (one dwelling per 25,000 sq. ft.), meaning that only eight units could have been erected on the site. (Defs.’ 56.1 ¶¶ 48,121; see also Pls.’ Counter Rule 56.1 Statement (“Pls.’ Counter 56.1”) ¶¶48, 121 (Dkt. No. 115).) The ASHL thus facilitated YCC’s plans to develop a facility for religious study on the Nike Site. (See Defs.’ 56.1 ¶¶ 47; Pls.’ 56.1 ¶ 15.)

While the ASHL was being considered, YCC submitted an updated site plan for 60 units of multifamily housing on the Nike Site. (See Pls.’ 56.1 ¶ 17; Defs.’ Counter 56.1 ¶ 17). See also Chestnut Ridge II, 953 N.Y.S.2d at 80. The proposal included a “traffic impact study” which concluded that the project would “not result in a significant negative impact on the area roadways.” Chestnut Ridge II, 953 N.Y.S.2d at 80. On April 15, 2004, the County of Rockland Department of Planning issued a disapproval of YCC’s updated site plan, noting the requisite changes in Ramapo zoning law had not yet been adopted. Id. On November 30, 2004, however, following the adoption of the ASHL and a public hearing, the Ramapo Planning Board issued a negative declaration for the proposal, approving the project and certifying that it would not have a “significant adverse environmental impact,” meaning that construction could proceed without further environmental review. (Defs.’ 56.1 ¶ 61; Joint Deck of Jody T. Cross and Gregory R. Saracino (“Defs.’ Decl.”) Ex. X (negative declaration) (Dkt. No. 104).) See also N.Y. Comp.Codes R. & Regs. tit. 6, § 617.2(y) (defining “negative declaration” as a “written determination by a lead agency that the implementation of [an] action as proposed will not result in any significant adverse environmental impacts”); Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 345-46 (2d Cir.2007) (defining a “negative declaration” as a “finding that the project would have no significant adverse environmental impact and thus that consideration of the project could proceed”). The negative declaration cited the aforementioned traffic study, but also required that a barrier-separated bus stop be created, and that plantings be used to minimize the impact of the proposal on the community character of the surrounding neighborhood. (See Defs.’ Decl. Ex. X (negative declaration).) See also Chestnut Ridge II, 953 N.Y.S.2d at 80.

B. State Court History

In October 2004, the Villages, together with four other individuals (the “Chestnut Ridge Plaintiffs”), brought suit against Ramapo and certain of its administrative boards in New York Supreme Court, Westchester County. (Defs.’ 56.1 ¶¶ 1, 59.) In this lawsuit, the Chestnut Ridge Plaintiffs alleged that Ramapo’s adoption of the ASHL, as well as its approval of the first project thereunder, a “sixty ... unit multi-family adult student housing development” — Kiryas Radin, did not comply with the New York State Environmental Quality Review Act (“SEQRA”), N.Y. Envtl. Conserv. Law § 8-0101 et seq. (Id. ¶¶ 1; see also id. ¶¶ 42-43, 47.) The Chestnut Ridge Action initially consisted of twelve causes of action, all of which were directed at the ASHL; the Chestnut Ridge Plaintiffs amended their Petition on December 23, 2004 to add a challenge to Ramapo’s approval of Kiryas Radin. (See id. ¶¶ 62-63; Defs.’ Decl. Ex. D (Chestnut Ridge Action amended petition).) See also Village of Chestnut Ridge v. Town of Ramapo, No. 07-CV-9278, 2008 WL 4525753, at *5 (S.D.N.Y. Sept. 30, 2008) (describing amendment). In their Petition, the Chestnut Ridge Plaintiffs specifically alleged that Ramapo “short-circuited the SEQRA process[] and failed to rationally study and mitigate the potential significant adverse environmental impacts of the ASHL and the Nike Site [p]roject,” including “traffic, sewer capacity, water usage, and community character,” which they alleged could have been mitigated through a reduction in the planned housing density. (Defs.’ 56.1 ¶¶ 44-46.) The Petition also named YCC, which at the time still owned the Nike Site, and Scenic Development LLC, an owner of a property known as “Patrick Farm,” which at the time was also advancing a proposal under the ASHL. (Id. ¶¶ 2-3.)

In January 2005, the Chestnut Ridge Plaintiffs sought a preliminary injunction “enjoin[ing], inter alia, the issuance of any additional approvals by [Ramapo] under the ASHL [and] ... the issuance of building permits in connection with the Nike Site.” (Defs.’ 56.1. ¶ 64 (italics omitted).) On August 2, 2005, Judge Nicolai of the New York Supreme Court granted a preliminary injunction to two of the individual Chestnut Ridge Plaintiffs, but dismissed the claims brought by the other Chestnut Ridge Plaintiffs, determining that they lacked standing. (Id. ¶¶ 65, 67 (citing Village of Chestnut Ridge v. Town of Ramapo, No. 04-1686 (N.Y.Sup.Ct. Aug. 2, 2005)).) See also Chestnut Ridge II, 953 N.Y.S.2d at 81. The preliminary injunction lapsed because the Chestnut Ridge Plaintiffs who were granted the injunction failed to post the necessary financial undertaking, and Kiryas Radin was completed thereafter. (Defs.’ 56.1 ¶¶ 68-69; Pls.’ Counter 56.1 ¶ 69.)

On August 14, 2007, upon appeal of Judge Nicolai’s decision, the New York State Appellate Division, Second Department (“Second Department”) held, inter alia, that all four Villages — Wesley Hills, Montebello, Chestnut Ridge, and Pomona — had standing to challenge the ASHL, and that Wesley Hills had standing to challenge Kiryas Radin. (Defs.’ 56.1 ¶ 70 (citing In re Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 841 N.Y.S.2d 321, 333 (2007) (“Chestnut Ridge I”)).) The court held that the Villages had “ ‘established a basis for legitimate concern ... that the development permitted by the [ASHL] [would] have a substantial detrimental effect on the roads in their community, their shared water supply and sewer systems, and the character of their neighborhoods,’ ” (id. ¶ 71 (quoting Chestnut Ridge I, 841 N.Y.S.2d at 338 (first and second alterations in original))), but that only Wesley Hills had “alleged any such interest in the [Nike Site] plan application,” Chestnut Ridge I, 841 N.Y.S.2d at 339 (noting that “[t]he Villages have established a demonstrated interest in the potential environmental impacts of the adult student housing law” (internal quotation marks omitted)). Based on that finding, Judge Nicolai issued another injunction on September 11, 2007, prohibiting, inter alia, occupation of Kiryas Radin. (Defs.’ 56.1 ¶ 72 (citing Village of Chestnut Ridge, 2008 WL 4525753, at *5).)

In the interim, in December 2005, YCC conveyed the deed for the Nike Site to Mosdos; Mosdos was added as a party in the Chestnut Ridge Action for that reason, at Judge Nicolai’s direction, on September 26, 2007. (Id. ¶¶ 4, 73-75, 81.) See also Village of Chestnut Ridge, 2008 WL 4525753, at *5 (describing this process). In its Answer, Mosdos included several counterclaims, alleging that by filing the Chestnut Ridge Action, the Chestnut Ridge Plaintiffs violated its civil rights. (Id. ¶ 78; see also Counterclaims ¶¶ 368-94.) Mosdos removed the case to federal court on October 16, 2007, but the Villages successfully sought a remand from this Court on September 30, 2008. (Defs.’ 56.1 ¶ 80.) See also Village of Chestnut Ridge, 2008 WL 4525753, at *1 (remanding case).

On December 8, 2009, Judge Nicolai dismissed the Chestnut Ridge Plaintiffs’ ASHL claims, but held, inter alia, that Ramapo’s review of the Nike Site violated SEQRA. (See Defs.’ 56.1 ¶¶ 87-96.) Judge Nicolai found that Ramapo had failed to take the required “hard look” at several areas of environmental concern, including community character, traffic, sewer, and water impacts, and made insufficient, conclusory statements in its negative declaration. (Id. ¶¶ 87-92.) See also Mosdos Chofetz Chaim Inc. v. Village of Wesley Hills, 701 F.Supp.2d 568, 579 (S.D.N.Y.2010) (“Mosdos 7”) (discussing this opinion). On appeal, on October 17, 2012, the Second Department dismissed the Chestnut Ridge Action in its entirety, finding that while the lower court properly dismissed the ASHL claims, it incorrectly ruled that Ramapo’s environmental review of Kiryas Radin violated SEQRA. (Defs.’ 56.1 ¶¶ 94-96 (citing Chestnut Ridge II, 953 N.Y.S.2d at 84).) The ruling did not address Mosdos’s counterclaims, however.

C. Federal Court History

On January 8, 2008, Plaintiffs commenced an action in this Court against the Villages, contending, as Mosdos did in its counterclaims, that the Chestnut Ridge Action violated their civil rights. (Defs.’ 56.1 ¶¶ 6-7, 82; see also Compl. (Dkt. No. 1).) Plaintiffs alleged that the Villages engaged in “[discriminatory conduct in application of the law regarding religious uses within ... Ramapo.” (Compl. ¶ 1.) On March 31, 2010, this Court granted Defendants’ Motion To Dismiss the Complaint, without prejudice, finding that the claims filed by the Mosdos Plaintiffs should have been brought as compulsory counterclaims under Federal Rule of Civil Procedure 13 in the Chestnut Ridge Action, but granting leave to amend the Complaint. (Defs.’ 56.1 ¶¶ 83-85). See also Mosdos I, 701 F.Supp.2d at 590, 592-93. In dismissing the Complaint, the Court also found that the Chestnut Ridge Action was protected by the First Amendment under the NoerrPennington doctrine, subject to limitations imposed by the Equal Protection Clause of the Fourteenth Amendment. See Mosdos I, 701 F.Supp.2d at 602. The Court explained that Defendants’ immunity under the doctrine could be defeated, and Plaintiffs’ claims could survive, if Plaintiffs alleged, with reference to similarly-situated comparator sites, that Defendants used environmental concerns as mere pretext for singling out the Nike Site because of its association with the Hasidic community. See id. at 603-604.

On June 3, 2010, Plaintiffs filed the instant Amended Complaint. (See Am. Compl.) On September 26, 2011, the Court granted Defendants’ Motion To Dismiss the Amended Complaint in part, dismissing all claims brought by the Mosdos (and YCC, who was a Plaintiff at the time), all claims brought by the Individual Plaintiffs against the Individual Defendants in their official capacities, all claims challenging the Villages’ zoning regulations and laws (which were newly alleged in the Amended Complaint), and all claims against Pomona and Pomona officials based on the New York State Constitution. See Mosdos II, 815 F.Supp.2d 679, 711.

On December 5, 2012, Mosdos removed the Chestnut Ridge Action, consisting at that time of only the counterclaims that Mosdos interposed. (Defs.’ 56.1 ¶¶ 17, 97; see also No. 12-CV-8856 Notice of Removal.) Discovery was completed in January 2014. (See Letter from Michael D. Zarin, Esq., to Court (Jan. 13, 2014) (Dkt. No. 94) (acknowledging the completion of fact discovery).) In the interim, the 2008 Action and Chestnut Ridge Action were consolidated on consent. (See Letter from Joseph J. Haspel, Esq., to Court (June 5, 2013) (acknowledging consolidation of the cases without opposition) (No. 12-CV-8856 Dkt. No. 9); see also Defs.’ 56.1 ¶ 17.) The Court thereafter held a pre-motion conference on February 11, 2014, and set a schedule for motions for summary judgment. (See Order (Dkt. No. 96).) After granting three extensions (see Dkt. Nos. 97-99), the Parties filed their Motions for Summary Judgment and associated documents on May 9, 2014. (Dkt. Nos. 101-112.) The Parties filed opposition materials on June 20, 2014, (Dkt. Nos. 114-126), and replies on July 11, 2014, (Dkt. Nos. 127-129). On February 6, 2015, the Court ordered supplemental briefing from Defendants on whether Mosdos should be granted leave to amend its counterclaims, (Dkt. No. 181), which Defendants submitted on February 13, 2015, (Dkt. No. 132). On the same day, the Court ordered a response from Mosdos on the same issue, (Dkt. No. 133), which Mosdos filed on February 23, 2015, (Dkt. No. 134). The Court held oral argument on March 5, 2015, (see Dkt. No. 130 (calendar notice)), and on March 17, 2015, ordered additional briefing from the Parties on the issue of whether Defendants had notice of the existence of certain comparator sites, (Dkt. No. 138). The Court granted two extensions to the briefing deadline, (Dkt. Nos. 137, 139), and the Parties submitted their letter briefs in response on March 25, 2015, (Dkt. Nos. MO-JI).

II. Discussion

A. Standard of Review

Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 313-14 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the norimoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a non-movant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted).

“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). To facilitate such action, “[a] plaintiff opposing a motion for summary judgment must lay bare his proof in evidentiary form and raise an issue of fact sufficient to send to the jury.” Weiss v. La Suisse, Société D'Assurances Sur La Vie, 293 F.Supp.2d 397, 408 (S.D.N.Y.2003) (internal quotation marks omitted). A court’s goal should, accordingly, be “ ‘to isolate and dispose of factually unsupported claims.’ ” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).

B. Analysis

1. Plaintiff’s Rule 56.1 Statement

The facts laid out above are primarily derived from Defendants’ Rule 56.1 Statement and Plaintiffs’ Counter Rule 56.1 Statement. The Court relies on these documents to determine the undisputed facts because Plaintiffs’ 56.1 Statement is almost entirely based on the May 9, 2014 Affirmation of A. Zaks (“Zaks Affirmation”), (see Defs.’ Mem. of Law in Opp’n to Pis.’ Mot. for Summ. J. 2 n. 4 (“Defs.’ Opp’n”) (Dkt. No. 118) (noting that 27 of 38 statements in Plaintiffs’ 56.1 Statement cite to the Zaks Affirmation)), which is largely inadmissible for the following reasons.

Defendants assert that A. Zaks lacks personal knowledge of several statements in his Affirmation. (See id. 2 (citing Affn of A. Zaks) (“A. Zaks May Aff'n”) ¶¶ 7-10 (discussing the motivation for the incorporation of the Villages), ¶ 12 (describing the Villages’ 2001 position that changes in zoning would cause water shortages and increases in traffic), ¶ 17 (explaining that the Villages “were notified as interested municipalities” about certain comparator projects), ¶ 18-24 (discussing characteristics of certain comparator projects), ¶ 31 (explaining the motivation for the Villages’ “campaign to defeat and block” Ramapo’s Comprehensive Plan), ¶ 35 (explaining the motivation for Ramapo’s adoption of the ASHL), ¶¶ 37-38 (contending that the Villages brought the Chestnut Ridge Action to prevent the expansion of the Orthodox and Hasidic communities), ¶¶ 40-52 (discussing the motivation for the incorporation of each Village, and the alleged conduct of each Village in targeting the Hasidic community) (May 9, 2014) (Dkt. No. 112).)

After reviewing the record, the Court finds that Plaintiffs have not established that A. Zaks has personal knowledge of these statements. For example, without evidence indicating otherwise, the Court is skeptical that A. Zaks is familiar with the motivation behind Defendants’ actions, both in incorporating the Villages and in filing the Chestnut Ridge Action, given that he did not attend Village meetings while either was occurring. (See Defs.’ Decl. Ex. M (A. Zaks Dep. Tr.), at 128 (“Q. Now, did you attend any meetings of the villages named in the amended complaint?) A. I don’t believe I attended the villages’ meetings, per se. But I believe I did see one meeting in a village.”). While the Court does not doubt that A. Zaks is aware of at least some of the assertions in' his Affirmation, they remain inadmissible if not based on personal knowledge. See Payne v. Huntington Union Free Sch. Dist., 219 F.Supp.2d 273, 279 (E.D.N.Y. 2002) (“Merely being ‘aware’ of purported facts is a far cry from having ... personal knowledge.”); Thomas v. Stone Container Corp., 922 F.Supp. 950, 957 (S.D.N.Y. 1996) (finding the plaintiffs affidavit asserting that he understood a purported fact to be true was insufficient to create an issue of fact). Therefore, and given Plaintiffs’ failure to respond to this argument in their Reply, the Court will not consider these portions of the A. Zaks Affirmation. See DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.2012) (“[W]here a party relies on affidavits ... to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.’ ” (quoting Fed.R.Civ.P. 56(c)(4)) (citing Fed.R.Evid. 602); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988)) (“Rule 56 requires a motion for summary judgment to be supported with affidavits based on personal knowledge.”); Baity v. Kralik, 51 F.Supp.3d 414, 419-20 (S.D.N.Y.2014) (disregarding “statements not based on [the] [plaintiffs personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge.” (internal quotation marks omitted)); Zigmund v. Foster, 106 F.Supp.2d 352, 356 (D.Conn 2000) (noting that “[a]n affidavit in which the plaintiff merely restates the conclusory allegations of the complaint” is insufficient to support a motion for summary judgment).

Second, Defendants argue that the portion of the A. Zaks Affirmation about whether certain comparator sites are similar to the Nike Site is inadmissible as unhelpful lay testimony. (See Defs.’ Opp’n 4 (citing A. Zaks May Aff'n ¶¶ 20-24).) Given, again, that Plaintiffs do not respond to this argument in their Reply, and that Plaintiffs have failed to proffer evidence, or even suggest, that A. Zaks has sufficient expertise to offer an opinion as to the similarity of development sites, the Court will not consider this portion of the A. Zaks Affirmation. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911-12 (2d Cir.1997) (holding lay opinion inadmissible if it does not help the fact-finder “to understand the witness’ testimony or to decide a fact a fact in issue” (citing Fed.R.Evid. § 701(b)); Adams v. City of New York, 993 F.Supp.2d 306, 324 (E.D.N.Y.2014)) (same).

Third, Defendants argue that certain aspects of the A. Zaks Affirmation are hearsay. (See Defs.’ Opp’n 5-6.) These include A. Zaks’ statement that he “personally heard the Villages’ counsel,” who is not a defendant in this case, “articulate that litigation would slow down the process [of developing the Nike Site], and the consequences would be that the project ‘would go away,”’ (A. Zaks May Affn ¶ 39), and A. Zaks’ reference to. the half-page affirmation of Leonard Perles, which is attached to the A. Zaks Affirmation, in which Perles says that he heard Wesley Hills Village Attorney Frank Brown (“Brown”), who also is not a Defendant in this case, say it would be a “ ‘catastrophe’ ” if a Hasidic Yeshiva purchased, and built on, certain property in Wesley Hills, {id. ¶ 51). Once again, Plaintiffs do not respond to this argument in their Reply.

A. Zaks does not reference the first statement for the truth of the matter asserted — that litigation would actually delay development on the Nike Site — but rather cites it for the fact that the statement was made, presumably as evidence that Defendants intended to use the Chestnut Ridge Action to undermine Kiryas Radin. (See A. Zaks May Aff'n ¶ 37 (asserting, two paragraphs before the statement in question, that “the goal of the Villages [was] to prevent the spread of the Orthodox and Hasidic Communities”).) The Court therefore finds that this portion of the A. Zaks Affirmation is not hearsay. See Fed.R.Evid. 801(c)(2); Spector v. Experian Info. Servs. Inc., 321 F.Supp.2d 348, 353-54 (D.Conn.2004) (finding statements in the plaintiffs affidavit to “not [be] hearsay because they [were] relied on only as evidence of what was said' or reported to [the] plaintiff, [and] not as evidence of the truth of any statement ... made”). By contrast, A. Zaks refers to the statement of Leonard Perles for the truth of the matter asserted, namely that Brown said what Perles claims he said, and so the Court will not consider that portion of the A. Zaks Affirmation because it is inadmissible hearsay. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 131 n. 12 (2d Cir.2004) (noting that district court was free to disregard hearsay statements in affidavits in considering a summary judgment motion); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) (noting that the party opposing a motion for summary judgment cannot rely on inadmissible hearsay evidence); Crippen v. Town of Hempstead, No. 07-CV-3478, 2013 WL 1283402, at *11 (E.D.N.Y. March 29, 2013) (“[I]nadmissible hearsay cannot raise a triable issue of fact sufficient to defeat a motion for summary judgment.” (internal quotation marks omitted)); Century Pac., Inc. v. Hilton Hotels Corp., 528 F.Supp.2d 206, 217 (S.D.N.Y.2007) (noting that a court may disregard “portions of an affidavit that are not based upon the affiant’s personal knowledge or contain inadmissible hearsay”), aff'd, 354 Fed.Appx. 496 (2d Cir.2009).

2. Qualified Immunity

As the Court determined in Mosdos I, the filing of the Chestnut Ridge Action is protected activity under the First Amendment right to petition by application of the Noerr-Pennington doctrine, which, drawing on two Supreme Court antitrust cases, provides that “ Titigation[,] as well as concerted efforts incident to litigation[,] may not serve as a basis for an antitrust claim.’ ” See Mosdos I, 701 F.Supp.2d at 593-602 (quoting Viva Optique, Inc. v. Contour Optik, Inc., No. 03-CV-8948, 2007 WL 4302729, at *2 (S.D.N.Y. Dec. 7, 2007)). The Court extended this doctrine, as courts in other federal circuits have done, to the civil rights claims at issue here. See id. at 595-97. Accordingly, Defendants are entitled to qualified immunity from liability for any civil rights violations stemming from their filing of that action. See id. at 604. While the Court determined that the Chestnut Ridge Action did not fall under the “sham exception” to Noerr-Pennington, id. at 602-03, it held that Plaintiffs could nonetheless overcome Defendants’ immunity by showing that they acted unconstitutionally in bringing the Chestnut Ridge Action, namely by proving that in doing so, they violated of the Equal Protection Clause, see id. at 603-04; see also Mosdos II, 815 F.Supp.2d at 688 (noting that, to defeat Defendants’ qualified immunity, and to render Plaintiffs’ claims “actionable, Defendants must have selectively chosen to bring suit regarding the Nike Site while treating other similarly situated properties differently”). Plaintiffs must therefore establish an issue of material fact as to whether Defendants committed an Equal Protection violation in order to proceed to trial, and the Court accordingly considers Plaintiffs’ Equal-Protection-based § 1983 claims together with Defendants’ qualified immunity defense.

The Court in Mosdos II defined the governing standard for Plaintiffs’ Equal Protection claims as follows:

To establish a denial of equal protection based on selective treatment, Plaintiffs must allege that: “(1) ... compared with others similarly situated, [they were] selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (internal quotation marks omitted); see also Abel v. Morabito, No. 04-CV-7284, 2009 WL 321007, at *4 (S.D.N.Y. Feb. 10, 2009) (citing Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir.2001)). “A showing that the plaintiff was treated differently compared to others similarly situated” is a “prerequisite” and a “threshold matter” to a selective treatment claim. Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 210 (2d Cir.2004).

Mosdos II, 815 F.Supp.2d at 692 (alterations in original); see also United States v. Stewart, 590 F.3d 93, 121 (2d Cir.2009) (explaining that, to succeed on an equal protection claim, a plaintiff must plead and prove (1) that he or she “was treated differently from other similarly situated individuals”; and (2) that “such differential treatment was based on impermissible considerations such as race, religion; intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure [the plaintiff]” (internal quotation marks omitted)); Mosdos II, 815 F.Supp.2d at 686 (“Thus, to plead a selective petitioning claim in the instant action, Plaintiffs must allege both: (1) that they were selectively treated compared to others similarly situated; and (2) that the selective treatment was motivated by an intention to discriminate based on impermissible considerations, such as religion.”). The Court will take up each prong of the standard — similarly-situated comparator sites and discriminatory motivation — in turn.

a. Initial Matters

Two initial matters require the Court’s attention before turning to whether Plaintiffs have met their evidentiary burden on their Equal Protection Clause claims. First, Plaintiffs argue that, in light of Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir.2012), the Court need not reach the heart of their Equal Protection Clause claims. (Pls.’ Mem. 51 (“Under [Fortress Bible ], it seems patently clear that whether there are comparables to the Villages, or not, the Villages should be liable for their inappropriate use of SEQRA.”); Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. (“Pls.’ Opp’n”) 5 (Dkt. No. 116) (“[T]he Mosdos Claimants maintain that in light of Fortress Bible, the Court need not reach the issue of whether or not the comparators are comparable”).) Plaintiffs argue that Fortress Bible stands for the proposition that because the concerns that purportedly motivated the Chestnut Ridge Action are land-use issues, rather than “true” environmental issues, Defendants were not entitled to rely on SEQRA to challenge Kiryas Radin at all. (See Pls.’ Mem. 50-51; see also Pls.’ Opp’n 7-8.) The Court is unpersuaded.

In Fortress Bible, the Second Circuit held that “when a statutorily mandated environmental quality review process,” in that case, SEQRA, “serves as a vehicle to resolve zoning and land use issues, the decision issued constitutes the imposition of a land use regulation as that term is defined in RLUIPA.” 694 F.3d at 218. On this basis, the court found that the defendant town violated RLUIPA when it initiated a SEQRA review process for a proposed church that was allegedly motivated primarily by traffic concerns. Id. at 217-18. In this sense, and as discussed in further detail below in the context of Plaintiffs RLUIPA counterclaims, Fortress Bible speaks to when SEQRA review constitutes the implementation of a land use regulation under RLUIPA. The case does not indicate if or when the use of SEQRA, either directly or by virtue of suing another municipality to implement it, violates the Equal Protection Clause or has any effect on a defendant’s qualified immunity. Further, in Fortress Bible, the district court had previously found that the defendant town used traffic concerns as a pretext for initiating SEQRA review, thus violating RLUIPA. Id. at 218, 221. This Court has not yet made any such finding about the environmental issues Defendants’ identified, though it is worth noting that this Court previously found that Defendants’ lawsuit was not a “sham,” Mosdos I, 701 F.Supp.2d at 602, and the Second Department determined that Defendants’ concerns were sufficiently meritorious to establish standing to sue Ramapo for failure to follow SEQRA, see Chestnut Ridge I, 841 N.Y.S.2d at 338-339 (noting that the Villages had “establish[ed] a basis for legitimate concern ... that the development permitted by the [ASHL] will have a substantial detrimental effect on the roads in their community, their shared water supply and sewer systems, and the character of their neighborhoods,” but that only Wesley Hills “alleged any such interest in the [Nike Site] plan application”). Plaintiffs cite no other case law in support of their claim. Accordingly, because Fortress Bible addresses RLUIPA and not the Equal Protection Clause, and because the Court has not made a determination about the merits of Defendants’ environmental concerns, the Court will consider the merits of Defendants’ qualified-immunity-based defense.

Second, Defendants argue that they did not “intentionally” bring suit against Mos-dos because the New York Supreme Court required that Mosdos be added as a party to the Chestnut Ridge Action. (See Defs.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”) 10 (Dkt. No. 105).) Plaintiffs respond by noting that Mosdos was harmed, and became involved in the litigation, when “the Villages requested and received a TRO enjoining the completion] [of] construction of ... Kiryas Radin.” (Pis.’ Reply Mem. of Law in Supp. of Mosdos Claimants Mot. for Summ. J. 7-8 (“Pls.’ Reply”) (Dkt. No. 127).)

The Court agrees with Plaintiffs. Even if Mosdos was not initially a party to the litigation, it is the current owner of the Nike Site, the development of which was allegedly stymied by the Chestnut Ridge Action. Moreover, after Mosdos gained control of the Nike Site and was added to the Chestnut Ridge Action, Defendants intentionally continued the suit, and thus at that time acted with the requisite intent against Mosdos. See Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000) (noting that “[t]here are several ways for a plaintiff to plead intentional discrimination,” and that he must simply “allege that a government actor intentionally discriminated against him”); cf. Harris v. City of New York, 186 F.3d 243, 249 (2d Cir.1999) (“[T]o advance a continuing violation claim a plaintiff must point to his disparate treatment stemming from a continuous practice of intentional discrimination.”). Thus, Mosdos’s Equal Protection claim does not fail on this narrow ground.

b. Similarly-Situated Comparator Sites

To prevail on their Equal Protection claims, Plaintiffs must show that similarly-situated development projects (the “Comparator Sites”) were treated differently, i.e., that Defendants did not file suit alleging that the environmental review of the Comparator Sites was insufficient under SEQRA. The Court in Mosdos II discussed the standard to apply to whether the Comparator Sites are sufficiently similar to Kiryas Radin. It found that because Plaintiffs’ Equal Protection claims are based on alleged discriminatory SEQRA litigation, the proper standard to apply in determining whether the Comparator Sites are similarly situated to Kiryas Radin is “less stringent” than the standard that would apply if Plaintiffs had simply alleged that Defendants had no rational reason for their disparate treatment. Mosdos II, 815 F.Supp.2d at 696. Accordingly, the Court found that it had to determine, at the motion to dismiss stage, “whether Plaintiffs ha[d] adequately alleged that any of their ... proffered comparators [was] similarly situated in all material respects [such] that a prudent person would think [it] [was] roughly equivalent.” Id. at 697.

While the question of whether two projects “are similarly situated is [generally] a factual issue that should be submitted to the jury,” Harlen Assocs., 273 F.3d at 499 n. 2, the Court may “properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met,” id. Thus, as the Court explained in Mosdos II, “at the summary judgment stage of selective enforcement claims, courts ask whether[,] based on the evidence, a reasonable jury could conclude that the plaintiff and the proposed comparators are similarly situated.” Mosdos II, 815 F.Supp.2d at 697-98; see also Salahuddin v. Goord, 467 F.3d 263, 282 (2d Cir.2006) (“On a motion for summary judgment, unlike on a motion to dismiss, [the plaintiff] must actually point to record evidence treating a genuine dispute as to those specific facts.” (citation omitted)). While the Second Circuit has “yet to decide the precise outlines of what it takes to be a valid comparator,” Third Church of Christ, Scientist, of N.Y.C. v. City of New York, 626 F.3d 667, 669 (2d Cir.2010), it is Plaintiffs’ burden to provide evidence establishing similarity, see Howard v. City of New York, No. 12-CV-933, 2013 WL 6925088, at *9 (S.D.N.Y. July 3, 2013) (explaining that “[t]he plaintiff bears the initial burden of demonstrating” sufficient similarity), adopted in relevant part by 2014 WL 84357 (S.D.N.Y Jan. 6, 2014), aff'd 602 Fed.Appx. 545, 2015 WL 895430 (2d Cir. Mar. 4, 2015)..

Kiryas Radin, now fully operational, is a residential complex containing an educational building and 12 accessory, multistory residential buildings which collectively contain sixty residential units at a density of 12.8 units per acre. (Defs.’ 56.1 ¶ 116; Pls.’ Mem. 10.) The non-residential areas include “a synagogue, study halls, classrooms, a library/Talmudic research center, [and] a ritual immersion bath.” (Pls.’ Mem. 10.) The development sits on a two-lane “collector road” of low-to-moderate capacity and of residential character, at least in major part, and is approximately one mile from the nearest commercial development. (Defs.’ 56.1 ¶¶ 118, 120.) It is surrounded by a low-density residential district consisting, at least in major part, of single family homes built on individual lots, and is adjacent to a school which does not have on-site housing. (Id. ¶¶ 49-50, 117, 119, 121.)

Plaintiffs contend that Defendants challenged Kiryas Radin, but failed to challenge similarly-situated projects, namely six Comparator Sites: Airmont Gardens, Retreat at Airmont (a.k.a. Pulte Homes), Salvation Army, Sycamore Crest, Avalon at Crystal Hill, and Montebello Commons. (Id. ¶¶ 106-107, 112.) Defendants admit that they did not commence litigation to challenge any of the Comparator Sites. (Defs.’ Counter 56.1 ¶ 37.)

Defendants retained Frank S. Fish (“Fish”) of “BFJ Planning” as an expert to compare Kiryas Radin to the Comparator Sites according to the “(1) surrounding land use and built context, (2) transportation, and (3) zoning” of the half-mile area around each site. (Defs.’ 56.1 ¶¶ 108, 113.) Surrounding land use and built context refers to “the actual use of land within the [sjtudy area,” transportation “looks at the road system serving the area,” and zoning “includes not only [that of] the particular site,” but also the zoning of the rest of the study area. (Id. ¶ 114.) Fish determined that no reasonable or prudent person could find that the Comparator Sites are “similarly situated or roughly equivalent” to Kiryas Radin. (Id. ¶ 110.) Because Fish’s Expert Report is the only evidence in the record of the characteristics of the Comparator Sites, the Court uses it as the primary source for information about the sites.

Airmont Gardens, located in the Village of Airmont (“Airmont”), is a multi-family residential complex with four interconnected four-story buildings located within an industrial and commercial area, and bordered by a self-storage facility, a power substation, a gas station, and an exit off of Interstate 287 (“1-287”). (Id. ¶¶ 122-24, 126.) It is located along North Airmont Road, a heavily-trafficked, four-lane “arterial road” that is commercial in character, abutted by retail stores, a motel, and a former restaurant, and is less than 1,000 feet from State Route 59 (“Route 59”), another “major arterial” road that is heavily commercialized as a main thoroughfare through Rockland County. (Id. ¶¶ 125- 26.) The area is zoned as a Specialized Housing Residential District (“RSH”), a “floating zone for senior housing” designed to be located in areas of high intensity land use to ensure “access to transportation, community[,] and commercial services,” and is located adjacent to Village Center, Laboratory Office, Planned Industry, and Medium-Density Affordable Housing zoning districts. (Id. ¶¶ 127-28.)

Retreat at Airmont (a.k.a. Pulte Homes), also located in Airmont, is a multi-family residential complex with six, three-story residential buildings, as well as a community building, located in an industrial and commercial area, and bordered by railroad tracks, a shopping center, and a hotel. (Id. ¶¶ 129-30.) It is located on the same road, with the same commercial character and proximity to 1-287 and Route 59, as Airmont Gardens. (Id. ¶¶ 131-32.) Additionally, like Airmont Gardens, Retreat at Airmont is zoned RSH, and is surrounded by Village Center, Planned Industry, Laboratory Office, and Laboratory Office-Campus districts. (Id. ¶¶ 133-34.)

Salvation Army is an officer training facility with associated residential dormitories and sixteen apartment buildings located in the Village of Suffern (“Suffern”), bordered on one side by a residential area containing a mix of high-density apartment buildings and single-family homes, and otherwise bordered by an office building, a hospital, and an abandoned quarry zoned for light industrial use. (Id. ¶¶ 135-36.) The site is located along Route 59, which, as described above, is a heavily commercialized arterial road, and is less than one mile from downtown Suffern and the Suffern train station. (Id. ¶ 137.) Salvation Army is zoned for Medium-Density Residential and Office uses, and the surrounding districts are Multi-Family Residential, High Density Residential, Medium Density Residential, and Office Districts. (Id. ¶ 138.)

Sycamore Crest is a large senior citizen apartment building in the Village of Spring Valley, built on 2.75 acres near institutional, utility, commercial, and residential “uses” on Route 59, including Spring Valley High School, Orange and Rockland Utilities, and the Kennedy Mall. (Id. ¶ 139.) The site is located on Route 59, which, as described above, is a heavily commercialized arterial road, and is less than one mile from downtown Spring Valley and the Spring Valley train station. (Id. ¶ 140.) Sycamore Crest is zoned for high-density residential development, and is adjacent to Medium-Density Residential, Office, and Light Industrial zoning districts, all of which separate Sycamore Crest from single-family homes to the south of the site. (Id. ¶¶ 141-42.)

Avalon at Crystal Hill, located in the Town of Haverstraw, is a large project of multiple residential apartment buildings bordered by Route 202, a major arterial road which in turn borders single-family residential neighborhoods, and is adjacent to South Mountain County Park, a shopping center, and a gas station. (Id. ¶¶ 144-47.) The single-family neighborhoods in the study area are accessed almost entirely by local streets, rather than by Route 202. (Id. ¶ 149.) There is also a police station, motel, and two other multifamily complexes within the half-mile study area, a commercial development and mobile home community less than one mile down Route 202, and a Palisades Parkway exit less than 1.2 miles away. (Id. ¶¶ 146, 148.) Avalon at Crystal Hill is zoned General Residential (a multi-family residential district), and is surrounded by commercial, office, and medium and low-density residential zoning districts, though the low-dénsity district is occupied by South Mountain County Park. (Id. ¶ 150.)

Montebello Commons is a multi-family residential complex located in Montebello adjacent to two other multi-family residential complexes of comparable size, and bordered by a Mack Cali office building and a single-family residential neighborhood that sits 10 feet above the site and is accessed by a different road. (Id. ¶¶ 152-54.) The site is located on Dashew Drive, 100 yards from the New York State Thruway and just off County Route 85, which is in close proximity to Route 59. (Id. ¶¶ 151, 155.) Montebello Commons and the adjacent multi-family residential complexes are zoned RSH, while the areas near the 1-287 are zoned for commercial and multi-family uses. (Id. ¶ 156.)

c. Sufficiency of the Evidence

In considering the Comparator Sites, a threshold issue is what constitutes a “material respect” in which they must be similar to Boryas Radin, namely “those factual elements which determine whether reasoned analogy supports” the idea that they should have been treated similarly. See, e.g., T.S. Haulers, Inc. v. Town of Riverhead, 190 F.Supp.2d 455, 463 (E.D.N.Y.2002) (internal quotation marks omitted). Plaintiffs imply that the material factors •are those which Defendants identified in the Chestnut Ridge Action, namely concerns about water, traffic, sewer, and community character, (see, e.g., Pls.’ Mem. 5) (discussing allegation that Defendants “never made any legal challenge to any other proposed development, including developments which would have a greater impact on their purported [environmental] issues”), factors that SEQRA defines as “significant environmental impacts,” N.Y. Comp.Codes R. & Regs. tit. 6, § 617.7(c)(1)(i), (v); see also Chestnut Ridge I, 841 N.Y.S.2d at 338-39 (explaining how these concerns are environmental, and discussing provision in SEQRA covering community character). By contrast, Fish’s expert report focuses more generally on “surrounding land use and build context,” “transportation,” and “zoning.” (Defs.’ Mem. 15) Defendants assert that these criteria are “the relevant aspects one must consider in determining whether comparator sites are similar.” (Id.)

In evaluating an Equal Protection claim, a central question is whether there is anything unique about the targets of the complained-of treatment such that a court can conclude that differential treatment was justified. Naturally, the reasoning provided by Defendants for their conduct in this case is a focus of the inquiry; if the reasoning applies equally well to comparable ■■ sites that were not similarly treated, then Plaintiffs may have been victims of discrimination. Cf. McGuinness v. Lincoln Hall, 268 F.3d 49, 54 (2d Cir.2001) (“In other words, where a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other[s] ..., [they] must have a situation sufficiently similar to [the] plaintiffs to support at least a minimal inference that the difference of treatment may be, attributable to discrimination.”). Therefore, “material respects” in this case refers to the Comparator Sites’ impact on water, sewer, traffic, and community character.

Moving to the core of Plaintiffs’ Equal Protection claim, Defendants contend, in short, that Plaintiffs fail to offer any evidence, beyond their initial allegations, of similarly-situated projects that could have been, but were not subject to, legal challenge by Defendants based on SEQRA. (See Defs.’ Mem. 11-14.) In Mosdos II, the Court found that it was “plausible that developments of the size alleged by Plaintiffs would have comparable impacts on water, traffic, sewer, and community character concerns.” Mosdos II, 815 F.Supp.2d at 699. However, the summary judgment standard “is vastly different than the standard on a motion to dismiss.” Ginx, Inc. v. Soho Alliance, 720 F.Supp.2d 342, 362 n. 8 (S.D.N.Y.2010). The Court therefore noted in Mosdos II that “[t]o ultimately survive summary judgment or prevail at trial on the merits, Plaintiffs will need to provide evidence demonstrating that these comparators are in fact similarly situated to a degree that did not warrant disparate treatment,” and that “[t]o the extent that the facts, developed after discovery, do not substantiate Plaintiffs’ allegations, Defendants may seek summary judgment.” Mosdos II, 815 F.Supp.2d at 705 n. 17, 706. Therefore, the Court now asks “whether!,] based on the evidence, 'a reasonable jury could conclude that [the Nike Site] and [at least one of] the proposed comparators are similarly situated.” Id. at 697-98, see also Frank Sloup & Crabs Unlimited, LLC v. Loeffler, 745 F.Supp.2d 115, 129 (E.D.N.Y.2010) (“Evidence of even one similarly situated individual is adequate.... ”).

Plaintiffs do, as Defendants suggest, appear to largely rest on the allegations they made at the motion to dismiss stage and findings previously made by the Court. (See, e.g., Pomona’s Mem. of Law in Supp. of Mot. for Summ. J. 4, 8-9, (“Pomona’s Mem.”) 4, 8-9 (Dkt. No. 107) (contending that Plaintiffs did nothing more than provide “mere citation[s]” to alleged comparators).) Consequently, Plaintiffs’ claim that the Comparator Sites are similarly situated rests principally on four claims: (1) water is a county-wide concern because it is provided by a single company, (2) sewer access is a county-wide concern because the sewers are interconnected, (3) traffic is a county-wide concern, and (4) because the “projects set forth as comparators are mostly equal to or larger in size than” Kiryas Radin, they have a “corresponding equal ... or larger impact on water, sewer and traffic,” suggesting that, according to common sense, “a reasonable fact finder would undoubtedly determine them to be proper comparators.” (Pls.’ Opp’n 5-6.)

While the logic of these claims is appealing, the problem for Plaintiffs is that they have offered nothing more than eonclusory, unsubstantiated assertions in support. As noted, threadbare allegations alone will not suffice to defeat a summary judgment motion. See Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995) (“[M]ere conclusory allegations ... are not evidence and cannot by themselves create a genuine issue of material fact.” (internal quotation marks omitted)); Tucker v. Am. Int’l Grp., Inc., No. 09-CV-1499, 2012 WL 685461, at *4 (D.Conn. Mar. 2, 2012) (“[I]t is hornbook law that unproven, nonadjudicated allegations are not evidence.”); Blount v. Swiderski, No. 03-CV-23, 2006 WL-3314635, at *12 (E.D.N.Y. Nov. 14, 2006) (noting that “on summary judgment, mere allegations are insufficient” and that the plaintiff “need[ed] to adduce proof sufficient to create a genuine issue of material fact on her selective treatment claim”) (citing Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)); see also McCown v. Nexant, Inc., No. 13-CV-455, 2014 WL 3579640, at *7 (M.D.Tenn. July 21, 2014) (noting that “[pjlaintiffs unsupported allegations” regarding similarly situated individuals “are not evidence, and cannot defeat a motion for summary judgment”). Plaintiffs’ only evidence in support of their characterization of the Comparator Sites is deposition testimony suggesting that water and sewer impacts would be similar for similarly-sized sites, (see, e.g., Pls.’ Mem. 16 (citing Defs.’ Decl. Ex. Q) (Frankl Dep. Tr.) c at 41-43 (suggesting that all of Rockland County is served by the same water company and that the sewer systems are, at least to some extent, interconnected); see. also Defs.’ Decl. Ex. P (McPherson Dep. Tr.), at 103-04 (discussing water sources in Rockland County and the fact that there is a single distributor); Defs.^ Counter 56.1 ¶ 23 (admitting Rockland County is served by a single water company)), statements from the A. Zaks Affirmation, to the extent they are admissible, and facts about the nature of Kiryas Radin and Comparator Sites that went uncontested in the competing 56.1 statements, (see, e.g., Defs.’ 56.1 ¶¶ 116-156). Plaintiffs have failed to provide (or, as far as the Court is aware, even seek) expert testimony, a deposition of Defendan