Judge’s Boost to Litchfield Chabad

MEGAN SPICER CT Law Tribune

A federal judge has given a boost to a Jewish organization that has fought a years-long zoning battle in Litchfield over a proposed synagogue and community center. Now the religious land use case, which has already made one stop at the U.S. Court of Appeals for the Second Circuit, appears destined for trial.

On one side is the Chabad Lubavitch of Litchfield County, an Orthodox Jewish group that wants to expand a Victorian house it owns near Litchfield’s downtown, which is known for its cluster of 18th- and 19th-century buildings. On the other side are officials from the Borough of Litchfield, who oversee the town’s historic area and have argued that an expanded Chabad building would be a poor fit in the neighborhood.

The dispute dates to 2007, when the borough’s Historic District Commission rejected the expansion plans. In turn, Chabad filed a lawsuit in 2009 under the Religious Land Use and Institutionalized Person’s Act, or RLUIPA. In late January, U.S. District Judge Janet Hall denied the borough’s motion for summary judgment, indicating that Chabad had a viable case under a law that gives religious entities the benefit of the doubt in zoning disputes.

“While RLUIPA does not afford religious organizations blanket approval to build however large a facility it desires, it does afford such organizations the right the build a facility that will allow it to engage in its religious exercise without being substantially burdened,” Hall wrote.

Kenneth Slater, a Halloran & Sage attorney representing Chabad Lubavitch, told the Waterbury Republican-American that his client is “thrilled because we believe our position is justified. My client was denied its rights and we look forward to presenting our case to a jury.”

Mark Shipman, the Hartford attorney representing the Historic District Commission, had little comment, other than to tell the newspaper that his side was “gearing up for a jury trial.”

Watching closely are Connecticut land use attorneys who say the case raises interesting questions about the scope of RLUIPA because some of the proposed uses for the expanded building appear to have little to do with religion. “The case may affect how future courts analyze RLUIPA claims, particularly mixed (religious and secular) uses,” three Robinson & Cole attorneys wrote on one of the firm’s blogs.

Size Dispute
Chabad Lubavitch is a movement within orthodox Judaism. The group has been active in Litchfield since 1996, and provides social service, educational and programs in the arts. The Historic District Commission characterized Chabad Lubavitch’s proposal as a 17,000-square-foot addition to a 2,700-square-foot Victorian house, and said the resulting structure would be out of character for the Litchfield historic district. The commission did rule, however, that the group was welcome to build an addition that was equal in size to the already constructed house.

Chabad Rabbi Joseph Eisenbach argued that the added space was needed so the group could add a sanctuary, two kosher kitchens, a ritual bath, a residence for the rabbi, a coffee bar, classrooms and an indoor swimming pool. He said the commission’s denial of the zoning application violated RLUIPA. The rabbi also disputed the commission’s use of the 17,000-square-foot figure in describing the proposed addition, saying that it included the basement and attic. He said the total area of the project should be listed as less than 8,000 square feet.
Chabad further argued that the Methodist church in town was permitted to add vinyl siding to its historic building. A “reasonable jury,” Hall wrote in her recent decision, could “conclude that the allowance granted to the Methodist church was a more significant accommodation than that which the [historic district] afforded the Chabad.”

In 2013, the Historic District Commission and the town zoning board approved Chabad Lubavitch’s plans to use its building for religious and community activities, as long as Chabad did not expand it. Chabad continued to pursue its litigation and in February 2014 Hall granted Litchfield’s motion for summary judgment and dismissed the lawsuit. At that time, Hall found no evidence of religious discrimination in the zoning application process.

Lawyers for Chabad appealed the ruling to the Second Circuit, claiming the organization should have a right to proceed under RLUIPA, which states that land use regulations may not impose a “substantial burden” on free exercise of religion, unless there is a compelling government interest to do so.
In a lengthy decision, a three-judge appellate panel ruled in September 2014 that Hall was wrong to dismiss the lawsuit and remanded the case to her for further consideration. The Second Circuit stated that Hall had erred when she held that Chabad needed to show evidence of discrimination, and also when she said Chabad failed to identify a religious group that received more favorable treatment in Litchfield after filing a zoning application that was “identical in all relevant aspects” to Chabad’s proposal.

‘Multiple Uses’
The upcoming trial – no date has been set – seems likely to focus on whether the Chabad proposal should enjoy RLUIPA protection since a sanctuary would be only one part of the building.

“When a religious entity seeks to construct a single building with multiple uses, the inquiry as to whether the construction of the building constitutes religious exercise becomes complicated,” wrote Hall. “This is especially so when some of the uses are arguably secular….At the very least, there exists a genuine issue of material fact with regard to whether the residence will be used for religious exercise.”

The Historic District Commission determined that some of the proposed uses the sanctuary, rabbi’s study, classrooms, ritual bath and library; are clearly related to religious exercise. Chabad has offered evidence that the pool, staff/visitor housing and rabbi residence also have religious purposes, but Hall determined there existed “genuine issues of material fact” whether that is so.

Moving forward, she said the court can approach the dispute one of two ways. The first would be to look at each proposed room and its intended purpose and whether its use is religious, secular or a combination of the two. Alternatively, it can take a “balancing” approach and decide if the project as a whole is a form of religious exercise. Hall wrote that the first approach, to consider each room, was “sounder also because it allows the court to comport more closely with the instructions given to it by [the Second Circuit] on remand.”