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Transcript of Chabad Lubavitch of Northwest Connecticut Appellants' Initial Brief - 110712 - ECF # 105
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7/29/2019 Chabad Lubavitch of Northwest Connecticut Appellants' Initial Brief - 110712 - ECF # 105
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12-1057(L)-cv,
12-1495 (Con)-cv
In The
United States Court of Appealsfor the Second Circuit
CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., andRABBI JOSEPH EISENBACH,
Plaintiffs-Appellants,
v.
BOROUGH OF LITCHFIELD, CONNECTICUT;HISTORIC DISTRICT COMMISSION OF
THE BOROUGH OF LITCHFIELD;
WENDY KUHNE, GLENN HILLMAN AND
KATHLEEN CRAWFORD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
PAGE PROOF BRIEF FOR PLAINTIFFS-APPELLANTS
Kenneth R. Slater, Jr.
HALLORAN & SAGE LLP
Counsel for Plaintiffs-AppellantsOne Goodwin Square
Hartford, CT 06103-4303
Telephone: (860) 297-4662
Email: [email protected]
Frederick H. Nelson
AMERICAN LIBERTIES INSTITUTE
Counsel for Plaintiffs-Appellants
P.O. Box 547503
Orlando, FL 32854-7503
Telephone: (407) 786-7007
Email: [email protected]
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Plaintiffs-Appellants, Chabad Lubavitch of Litchfield County, Inc. (the Chabad),
by its attorneys, certifies the Chabad is a 501(c)(3) corporation and has no parent
corporation nor does any publicly held corporation own stock in the Chabad.
Dated: November 7, 2012
AMERICAN LIBERTIES INSTITUTE
By:
/s/Frederick H. Nelson
Frederick H. Nelson, Esq.
Attorneys for Chabad Lubavitch ofLitchfield County, Inc., and Rabbi Joseph
Eisenbach
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iii
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .................................................................................. vii
I. JURISDICTIONAL STATEMENT ..................................................................... 1
II. STATEMENT OF THE ISSUES ......................................................................... 1
III. STATEMENT OF THE CASE ............................................................................ 2
IV. STATEMENT OF FACTS .................................................................................. 3
A. The Chabad and the Rabbi and the Religious Needs ...................................... 3
B. The Propertys Missing Architectural Detail .................................................. 5
C. A Brief History of the Boroughs Other Additions ........................................ 6
1. The Wolcott Library .................................................................................... 7
2. The Rose Haven Home ................................................................................ 8
3. The Cramer and Anderson law firm ............................................................ 9
D. Other Houses of Worship ................................................................................ 9
1. Congregational Church .............................................................................. 10
2. St. Michaels Parish ................................................................................... 11
3. St. Anthony of Padua ................................................................................. 12
4. United Methodist ....................................................................................... 12
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iv
TABLE OF CONTENTS (CONT.)
E. The Regulation of Architecture in the Borough ............................................ 13
F. The Arbitrary History of the HDC ................................................................ 14
G. The Application ............................................................................................. 16
H. The HDC Meets to Discuss the Application ................................................. 17
1. The First Meeting ....................................................................................... 17
2. The Second Meeting .................................................................................. 19
3. The Third Meeting ..................................................................................... 20
4. The Fourth Meeting ................................................................................... 20
I. The HDC Denies the Application ................................................................... 21
V. STANDARD OF REVIEW ............................................................................... 22
VI. SUMMARY OF ARGUMENT ......................................................................... 22
VII. ARGUMENT ................................................................................................... 24
POINT I ............................................................................................................... 24
THE HDC APPLIED AN INDIVIDUALIZED ASSESSMENT TO THE
CHABADS APPLICATION ............................................................................. 24
A. The Law ........................................................................................................ 24
B. The Facts ....................................................................................................... 29
1. Inadequate facilities ................................................................................... 31
2. Arbitrary, Capricious or Unlawful ............................................................. 34
3. Final Decision ............................................................................................ 37
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TABLE OF CONTENTS (CONT.)
POINT II ............................................................................................................. 40
THE EQUAL TERMS PROVISION ................................................................. 40
A. The Law ........................................................................................................ 40
B. The Facts ....................................................................................................... 42
1. The Wolcott Library .................................................................................. 43
2. The Rose Haven Home .............................................................................. 47
3. The Cramer and Anderson law firm .......................................................... 49
POINT III ............................................................................................................ 50
THE NONDISCRIMINATION PROVISION ................................................... 50
A. The Law ........................................................................................................ 50
B. The Facts ....................................................................................................... 52
POINT IV ............................................................................................................ 54
EQUAL PROTECTION ..................................................................................... 54
A. The Law ........................................................................................................ 55
B. The Facts ....................................................................................................... 55
POINT V ............................................................................................................. 54
CONSTITUTIONAL CLAIMS .......................................................................... 57
A. Freedom of Speech ........................................................................................ 57
B. Freedom of Association ................................................................................ 57
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TABLE OF CONTENTS (CONT.)
C. Due Process ................................................................................................... 58
POINT V ............................................................................................................. 58
ORDER DISMISSING RABBI .......................................................................... 58
A. The Law ........................................................................................................ 58
B. The Facts ....................................................................................................... 59
CONCLUSION ........................................................................................................ 64
CERTIFICATE OF COMPLIANCE ....................................................................... 65
CERTIFICATION OF SERVICE............................................................................ 66
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vii
TABLE OF AUTHORITIES
Cases:
Albanian Associated Fundv. Township of Wayne,No. 06-cv-3217 (PGS),
2007 WL 2904194 (D.N.J. Oct. 1, 2007) .............................................................. 33
Analytical Diagnostic Labs, Inc. v. Kusel,626 F.3d 135 (2d Cir. 2010) ............................................................................. 55, 56
Bizzarro v. Miranda,
394 F.3d 82 (2d Cir. 2005) ..................................................................................... 55
Castle Hills First Baptist Church v. City of Castle Hills,No. 5:01CV01149, 2004 WL 546792 (W.D. Tex. Mar. 17, 2004) ....................... 34
Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield,853 F. Supp. 2d 214 (2012) ..................................................................................... 3
Chahal v. Paine Webber Inc.,
725 F.2d 20 (2d Cir. 1984) ..................................................................................... 62
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,508 U.S. 520 (1993) ................................................................................... 27, 29, 51
Civil Liberties for Urban Believers v. City of Chicago,342 F.3d 752 (7th Cir. 2003) ................................................................................. 40
Columbus Bd. of Ed. v. Penick,443 U.S. 449 (1979) ............................................................................................... 51
Compania Del Bajo Caroni (Caromin), C.A. v. Bolivarian Republic of Venezuela,
341 Fed. Appx. 722 (2d Cir. 2009) ........................................................................ 63
Congregation Kol Ami v.Abington Twp.,No. 01-1919, 2004 WL 1837037 (E.D. Pa. Aug. 17, 2004) amended,
No. 01-1919, 2004 WL 2137819 (E.D. Pa. Sept. 21, 2004) .................................. 34
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TABLE OF AUTHORITIES (CONT.)
Jean v. Nelson,711 F.2d 1455 (11th Cir. 1983) ............................................................................. 51
Jolly v. Coughlin,76 F.3d 468 (2d Cir. 1996) ..................................................................................... 32
Konikov v. Orange Cty, Fla.,
410 F.3d 1323 (11th Cir. 2005) ....................................................................... 29, 41
Lighthouse Institute for Evangelism, Inc. v. City of Long Branch,510 F.3d 253 (3rd Cir. 2007) ................................................................................. 42
Lovelace v. Lee,472 F.3d 174 (4th Cir. 2006) ................................................................................. 32
MacDonald, Sommer & Frates v. Yolo Cty,477 U.S. 340 (1986) ............................................................................................... 28
Marshall v. Kleppe,637 F.2d 1217 (9th Cir. 1980) ............................................................................... 62
Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1225 (11thCir. 2004),
cert. denied, 543 U.S. 1146 (2005) ........................................................................ 28
Mintzv.Roman Catholic Bishop of Springfield,424 F. Supp. 2d 309 (D. Mass. 2006) .................................................................... 33
Natural Res. Def. Council v. Johnson,
461 F.3d 164 (2d Cir. 2006) ................................................................................... 60
Phelps v. Kapnolas,
308 F.3d 180 (2d Cir. 2002) ................................................................................... 60
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty,450 F.3d 1295 (11th Cir. 2006) ........................................................... 40, 41, 50, 51
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TABLE OF AUTHORITIES (CONT.)
Reaching Hearts International, Inc. v. Prince Georges County,584 F.Supp.2d 766 (D. Maryland 2008) .......................................................... 32, 52
RK Ventures, Inc. v. City of Seattle,
307 F.3d 1045 (9th Cir. 2002) ............................................................................... 63
Robinson v. Overseas Military Sales Corp.,
21 F.3d 502 (2d Cir. 1994) ............................................................................... 22, 61
Rocky Mountain Christian Church v.Board of Cnty. Commrs,613 F.3d 1229 (10th Cir. 2010) ............................................................................. 33
Sts. Constantine & Helen Greek Orthodox Church v. City of New Berlin,396 F.3d 895 (7th Cir. 2005) ..................................................................... 27, 28, 37
San Jose Christian College v. City of Morgan Hill,360 F.3d 1024 (9th Cir. 2004) ............................................................................... 25
Shell Petroleum, N.V. v. Graves,709 F.2d 593 (9th Cir. 1983), cert. denied, 464 U.S. 1012 (1983) ....................... 62
Sherbert v. Verner,374 U.S. 398 (1963) ......................................................................................... 26, 28
Soranno's Gasco, Inc. v. Morgan,
874 F.2d 1310 (9th Cir. 1989) ................................................................... 61, 62, 63
Tanoh v. Dow Chemical Co.,
561 F.3d 945 (9th Cir. 2009) ................................................................................. 42
Thomas v. Review Board of the Indiana Employment,450 U.S. 407 (1981) ............................................................................................... 32
United States v. Board of Commissioners of Indianapolis,573 F.2d 400 (7th Cir. 1978), cert. denied, 439 U.S. 824 (1978) ......................... 51
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TABLE OF AUTHORITIES (CONT.)
Village of Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252 (1977) ............................................................................................... 52
Village of Willowbrook v. Olech,528 U.S. 562 (2000) ............................................................................................... 55
Vision Church v. Village of Long Grove,468 F.3d 975 (7th Cir. 2006) ................................................................................. 42
Westchester Day School v. Village of Mamaroneck,504 F.3d 338 (2d Cir. 2007) ..................................................................... 25,passim
Wright v. Southland Corp.,187 F.3d 1287 (11th Cir. 1999) ............................................................................. 51
Yung v. Lee,432 F.3d 142 (2d Cir. 2005) ................................................................................... 60
Rules:
Federal Rule of Civil Procedure 12(b)(1) ................................................................ 22
Federal Rule of Appellate Procedure 25 .................................................................. 66
Federal Rule of Appellate Procedure 32(a)(5)(A) ................................................... 65
Federal Rule of Appellate Procedure 32(a)(6) ......................................................... 65
Federal Rule of Appellate Procedure 32(a)(7)(B) ................................................... 65
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) ............................................. 65
Statutes:
28 U.S.C. 1292(a)(1) ............................................................................................... 1
28 U.S.C. 1331 ........................................................................................................ 1
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TABLE OF AUTHORITIES (CONT.)
42 U.S.C. 2000cc, et seq. ................................................................................ 1, 2, 3
42 U.S.C. 2000cc(a)(2)(C) .............................................................................. 26, 27
42 U.S.C. 2000cc(a)(1) ......................................................................................... 22
42 U.S.C. 2000cc(b)(1) ................................................................................... 40, 41
42 U.S.C. 2000cc(b)(2) ......................................................................................... 50
42 U.S.C. 2000cc-5(5) .................................................................................... 58, 61
42 U.S.C. 2000cc-5(7) .......................................................................................... 58
Conn. Gen. Stat. 7-147f(b) .................................................................. 13, 35, 37, 47
Conn. Gen. Stat. 52-571b .......................................................................... 1, 2, 3, 59
Other:
146 Cong. Rec. 16,698-16,699 (2000) H.R. Rep. No. 219, 106th Cong., 1st Sess.
21-24 (1999) ............................................................................................................. 28
Sarah Keeton Campbell,Restoring RLUIPAs Equal Terms Provision,58 Duke L.J. 1071 (2009) ........................................................................................ 42
Secretary of the Interiors Standards........................................................................ 14
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I. JURISDICTIONAL STATEMENT
This is an appeal from two orders and the final judgment of the United
States District Court for the District of Connecticut (Janet C. Hall, D.J.). On June
21, 2011, Judge Hall entered an order dismissing Rabbi Joseph Eisenbach (the
Rabbi). On February 17, 2012, Judge Hall entered an order denying the
Chabads Motion for Partial Summary Judgment and granting the defendants
Motions for Summary Judgment. The final judgment is dated February 21, 2012.
The trial court had jurisdiction pursuant to 28 U.S.C. 1331. Because the
trial courts order denied the Chabads Motion for Partial Summary Judgment and
granted the defendants Motions for Summary Judgment, the Court of Appeals has
jurisdiction pursuant to 28 U.S.C. 1292(a)(1). A notice of appeal was duly filed
on March 15, 2012 (No. 12-1057-L), and following cross-appeals, the Rabbi filed a
Notice of Appeal on the consolidated cross-appeals on April 12, 2012 (No. 12-
1495-Con).
II. STATEMENT OF THE ISSUES
Whether the trial court applied the correct legal analysis to the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, et seq., and the
Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b.
Whether the trial court applied the correct legal analysis to the federal and
state constitutional issues.
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Whether the trial court erred by resolving disputed questions of fact instead
of only determining whether, as to any material issue, a genuine factual dispute
exists.
Whether the trial court applied the correct legal and factual analysis to the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, et
seq., the Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b, and the
federal and state constitutional issues when dismissing Rabbi Joseph Eisenbach.
Whether the trial court, in resolving the assertion the trial court lacked
jurisdiction, should have allowed a hearing, and/or discovery, and/or amendment to
demonstrate jurisdiction.
III. STATEMENT OF THE CASE
The Chabad purchased an existing building located at 85 West Street,
Litchfield, Connecticut (the Property), to operate a religious mission. Rabbi
Joseph Eisenbach retains rights to a lien interest against the Property. The property
is located in the historic district of the Borough of Litchfield. A Certificate of
Appropriateness was submitted to the historic district commission seeking to
modify the Property in order to accommodate the needs of the planned religious
activities. The historic district commission denied the Certificate of
Appropriateness.
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The Chabad and the Rabbi bring this case because the denial of the
Certificate of Appropriateness violated the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. 2000cc, et seq. (RLUIPA), the
Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b, and several
provisions of the federal Constitution and Connecticuts Constitution.
Janet C. Hall issued the two orders appealed from, but only the summary
judgment is published at Chabad Lubavitch of Litchfield County, Inc. v. Borough
of Litchfield, 853 F. Supp. 2d 214 (2012).
IV. STATEMENT OF FACTS1
A.The Chabad and the Rabbi and the Religious NeedsThe Chabads current location is inadequate to carry out the faith and
practice required by the Orthodox Hasidic religion. Doc.156-1 at 2 (citing Ex. B -
- Eisenbach Aff., 11 - 12; Third Am. Compl., 34 DE # 54). Due to numerous
limitations, the Chabad is unable to fulfill its religious mandate at the current
location. Doc.156-1 at 3 (citing Ex. B -- Eisenbach Aff., 11 - 12). The Chabad
has lost parishioners because it is unable to practice its religion at its current
1 The parties have stipulated to proceed on the basis of a deferred appendix.
For purposes of this pre-appendix brief, the trial courts decision will be referred to
as Opin followed by a reference to the page number; the other record entries will
be referred to as Doc followed by a reference to the paragraph or page number of
the cited record document.
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location. Doc.156-1 at 4 (citing Ex. B -- Eisenbach Aff., 11 - 12; Third Am.
Compl., 29 DE # 54).
The new Property was specifically purchased in order to adequately carry
out the faith and practice required by the Orthodox Hasidic religion. Doc.156-1 at
5 (citing Ex. B -- Eisenbach Aff., 11 - 12; Third Am. Compl., 32 DE # 54).
An Application for a Certificate of Appropriateness (the Application) was filed
with the historic district commission (the HDC) to modify the Property in order
to accommodate the needs of the planned religious activities at the Property.
Doc.156-1 at 6 (citing Third Am. Compl., pp. 1-2, and 2, 3, 18 DE # 54.
The Chabads advisory committee met numerous times and the size of
renovation was determined to be the minimum required for the religious mission
and purpose to serve the Northwest Connecticut area. Doc.156-1 at 59 (citing Ex.
B -- Eisenbach Aff., 11). Every aspect of the Application, throughout the design,
reflects the spiritual and physical needs to further the religious mission. Doc.156-1
at 60 (citing Ex. B -- Eisenbach Aff., 11). The Chabads advisory committee
designed a Synagogue reflecting conservatively on the size of the greater Litchfield
community and surrounding areas. Doc.156-1 at 61 and 62 (citing Ex. B --
Eisenbach Aff., 11).
Most of the Temples around the world fill their sanctuary twice a year
during high holy days and lifecycle events. Doc.156-1 at 63 (citing Ex. B --
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Eisenbach Aff., 11). One of New York Citys largest temples known as the
Central Synagogue averages twenty-five to fifty (25-50) at a Sabbath service
(non Bar/Bat Mitzvah week). Doc.156-1 at 64 (citing Ex. B -- Eisenbach Aff.,
11). Like other religious faiths, the Chabad has weekly attendance that varies each
week and season. Doc.156-1 at 65 (citing Ex. B -- Eisenbach Aff., 11). Like
other religious faiths (such as Christian churches), additional space is necessary to
accommodate for the times when the building will be filled. Doc.156-1 at 66
(citing Ex. B -- Eisenbach Aff., 11).
B.The Propertys Missing Architectural DetailThe Historic Survey of the Property was read into the HDC record. Doc.156-
1at 52 (citing Ex. E -- Boe Aff., 25).2
The Historic Survey reveals the Property
had undergone major remodeling and most of the architectural details had been
lost. Doc.156-1 at 53 (citing Ex. E -- Boe Aff., 25).
Since 1981, the Property has been used as a commercial enterprise. The
most visible portions of the Propertys building, including many of the elements
that defined its architectural style, were drastically altered or destroyed in order to
make the building suitable for commercial uses. Over the years, the building was
changed from a residential use to a commercial use. In 1971, the Property was
2 In addition to being entered into the HDC record as Exhibit # 80, Mr.
Michael Boes Affidavit was also verified as accurate by his own words and
attached to his deposition as Exhibit # 17. Doc.156-3 (Ex. A -- Nelson Aff., Ex. 11,
Boe Depo. Tr., p. 106, lines 1 22).
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officially rezoned from residential to commercial. The building subsequently
housed an antique shop with multiple vendors, a fabric store, and, most recently,
the Wilderness Shop (a retail outfitters store). The buildings original architectural
style has been lost, changed, or gutted during the time the HDC has existed.
Doc.156-1 at 54 (citing Ex. C -- Bearns Aff., 18).
The HDC did not require documentation of the building prior to the many
alterations and the HDCs records do not indicate the exact nature or extent of the
alterations. The lack of documentation and records makes it virtually impossible to
restore the Propertys building to its appearance prior to these alterations. The
many decades of commercial alterations have caused the Propertys building to
lose any type of historical significance as a contributing structure to the historic
district. Doc.156-1 at 54 (citing Ex. C -- Bearns Aff., 18).
C.A Brief History of the Boroughs Other AdditionsSecular properties have expanded and built additions in the historic district
that caused the residential property to become institutional through substantial
renovations. Doc.156-1 at 44 (citing Ex. C -- Bearns Aff., 4 6; citing Ex. D
-- Herbst Aff., Ex. 2, pp. 2 3). There are numerous residential houses within the
historic district that are similar in size, if not larger than, the proposed Synagogue.
Many of these houses were expanded over the years through sizable additions.
Doc.156-1 at 45 (citing Ex. C -- Bearns Aff., 4 6). Many of the properties
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located within the historic district were once residences and have been used,
historically and currently, for a variety of uses including institutional, business and
commercial. Doc.156-1 at 46 (citing Ex. C -- Bearns Aff., 15).
1. The Wolcott Library
In 1965, the Wolcott Library was allowed to make additions that caused it to
lose its historical residential character. Doc.156-1 at 120 (citing Ex.C -- Bearns
Aff., 4; Ex. D -- Herbst Aff., Ex. 2, pp. 2 3). The Library was once a residence
and, before the institutional conversion, was one of the most historically
significant residential structures in the Borough. Doc.156-1 at 121 (citing Ex. D
-- Herbst Aff., Ex. 2, p. 2).
In 1965, a substantial addition to the residence changed the appearance from
a residence to an institutional property. Doc.156-1 at 123 (citing Ex.C -- Bearns
Aff., 4; Ex. D). Although the HDCs denial letter in this case states it would only
approve an addition equal in square footage to the Chabads current building, the
HDC conceded the Library addition was larger than the original residence.
Doc.140-1, p. 32.
The HDCs denial compares the Chabads addition with the Librarys
addition and falsely asserts the Library addition is hidden below and behind the
colonial house. Photographic evidence clearly reveals the Library addition is
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plainly visible from the public street. Doc.137-2 at 16 (citing Ex. A -- Nelson
Aff., Ex 1; Ex 13, p. 3; Ex 14, p. 4).
The HDCs denial falsely asserts the Library addition is narrower than the
house. Photographic evidence clearly reveals the Library addition is not narrower.
Doc.137-2 at 18 (citing Ex. A -- Nelson Aff., Ex 1). Both the Official Litchfield
Assessors Card and the Librarys Site Plan show the Library addition extends
beyond each side. Doc.137-2 at 19 (citing Ex. A -- Nelson Aff., Ex 16; Ex 12, p.
3) Photographic evidence clearly reveals the Library addition also includes
industrial glass and metal doors as part of the overall modern appearance.
Doc.137-2 at 21 (citing Ex. A -- Nelson Aff., Ex 14, p. 3-4; Doc.137-4,pp.15-16).
2. The Rose Haven Home
The property that is currently the Rose Haven Home healthcare facility was
once a residence. Like the Chabads Property, the Rose Haven Home healthcare
facility was originally a Deming House. A substantial addition to the residence
changed the appearance from a residence to an institutional property. The addition
was very large in comparison to the original structure. The addition was
substantially larger than the original structure. Doc.156-1 at 124 (citing Ex. C --
Bearns Aff., 5).
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3. The Cramer and Anderson law firm
The property that is currently the Cramer and Anderson law firm was once a
residence. A substantial addition to the residence changed the appearance from a
residence to an institutional property. The addition was very large in comparison to
the original structure. The addition was substantially larger than the original
structure. Doc.156-1 at 125 (citing Ex. C -- Bearns Aff., 6).
D.Other Houses of WorshipThere are four Christian churches located within the historic district.
Doc.156-1 at 128 (citing Ex. C -- Bearns Aff., 8). Three of the Christian
churches are substantially larger in scale than the scale proposed by the Chabads
Application. Doc.156-1 at 129 (citing Ex. C -- Bearns Aff., 8). The HDCs own
witness conceded that the Chabads proposal was not larger in scale than three
Christian churches in the district. Doc.156-1 at 126 (citing Ex. A -- Nelson Aff.,
Ex 12, DAndrea Depo. Tr., p. 54, lines 8 - 22). The fourth Christian church --
United Methodist -- is similar in scale to the Chabads Application. Doc.156-1 at
130 (citing Ex. C -- Bearns Aff., 8). All four Christian churches are substantially
larger in visual height than that proposed in the Chabads Application. Doc.156-1
at 169 (citing Ex. C -- Bearns Aff., 13).
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1. Congregational Church
The Congregational Church is substantially larger in both scale (visual) and
size (square feet) than requested in the Chabads Application. Doc.156-1 at 133
(citing Ex. C -- Bearns Aff., 9). In 1966, the HDC approved an addition allowing
the Congregational Church to add 7,634 square feet. Doc.156-1 at 131 (citing Ex.
C -- Bearns Aff., 9). The 1966 addition alone is larger than the total size the HDC
will permit the Chabad -- 6,000 square feet. Doc.156-1 at 15 (citing DE # 137-6,
Ex. A -- Nelson Aff., Ex 21, p. 6).
In terms of scale, on its own the churchs main building is visually larger
than the scale proposed by the Chabads Application. Doc.156-1 at 135 (citing
Ex. A -- Nelson Aff., Ex. 14 -- photographs). In terms of size, on its own the
churchs main building is 14,370 square feet including a basement (7,185) and first
floor (7,185). Doc.156-1 at 137 (citing Ex. A -- Nelson Aff., Ex. 16 -- Assessors
card).3
Just one floor of the main building is more than the total the HDC would
permit for the Chabad. Doc.156-1 at 15 (citing DE # 137-6, Ex. A -- Nelson Aff.,
Ex 21, p. 6).
Comparing the total size, the HDC will only permit the Chabad a total of
6,000 square feet. Doc.156-1 at 15 (citing DE # 137-6, Ex. A -- Nelson Aff., Ex
21, p. 6). Comparing the same building method used in the Chabads Application,
3 The photographs and exhibits were entered into the HDC record as
composite # 135.
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taking the existing visual scale and stacking the same footprint of 7,185 square
feet vertically would create an additional two levels (totaling an additional 14,370
square feet). Doc.156-1 at 138 (citing Ex. A -- Nelson Aff., Ex. 16 -- Assessors
card). The church is now more than four times larger than the total size the HDC
would grant to the Chabad, and seven times larger than the total size the HDC
would grant to the Chabad (when including the stacking method used by the
Chabads Application). Doc.156-1 at 139 (citing Ex. A -- Nelson Aff., Ex. 16--
Assessors card).
2. St. Michaels Parish
St. Michaels Parish is substantially larger in scale than requested in the
Chabads Application. Doc.156-1 at 160 (citing Ex. A -- Nelson Aff., Ex. 21 --
photograph); and Doc.156-1 at 158 (citing Ex. C -- Bearns Aff., 11). The
church is now nearly three times larger than the total size the HDC would permit
the Chabad. Doc.156-1 at 159 (citing Ex. C -- Bearns Aff., 11).
In terms of comparing scale, on its own the churchs main building is
visually larger than the scale proposed by the Chabads Application. Doc.156-1 at
160 (citing Ex. A -- Nelson Aff., Ex. 21 -- photograph). Taking the existing
visual scale and stacking the same footprint vertically would create a size four
times larger than the total size the HDC would grant to the Chabad. Doc.156-1 at
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161 (citing Ex. A -- Nelson Aff., Ex. 22 -- SK4 comparison; Ex. 23 -- Assessors
card).4
3. St. Anthony of Padua
St. Anthony of Padua is substantially larger in scale than requested in the
Chabads Application. Doc.156-1 at 165 (citing Ex. C -- Bearns Aff., 12). The
church is now three times larger than the total the HDC would permit the Chabad.
Doc.156-1 at 166 (citing Ex. C -- Bearns Aff., 12).
In terms of comparing scale, on its own the churchs main building is
visually larger than the scale proposed by the Chabads Application. Doc.156-1 at
167 (citing Ex. A -- Nelson Aff., Ex. 25 -- photograph). Taking the existing
visual scale and stacking the same footprint vertically would create a size three
times larger than the total size the HDC would grant to the Chabad. Doc.156-1 at
168 (citing Ex. A -- Nelson Aff., Ex. 26 -- SK2 comparison; Ex. 27 - Assessors
card).5
4. United Methodist
The United Methodist Church is similar in scale as that requested in the
Chabads Application. Doc.156-1 at 143 (citing Ex. C -- Bearns Aff., 10). In
4 The photograph and exhibits were entered into the HDC record as composite
# 134.
5The photograph and exhibits were entered into the HDC record as composite
# 136.
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the mid-eighties, the HDC granted a Certificate of Appropriateness allowing the
church to apply vinyl siding. Doc.156-1 at 150 (citing Ex. A -- Nelson Aff., Ex.
13, Bucklin Depo. Tr., p. 39, lines 9 18). Vinyl siding does not comply with the
HDCs standards for historic preservation. Doc.156-1 at 153 (citing Ex. A--
Nelson Aff., Ex. 13, Bucklin Depo. Tr., p. 41, lines 22 23). No other buildings in
the district have vinyl siding. Doc.156-1 at 157 (citing Ex. A -- Nelson Aff., Ex.
13, Maggie Bucklin Depo., p. 42, lines 1 24). The HDC granted the request
because it was trying to help the church save money. Doc.156-1 at 156 (citing
Ex. A -- Nelson Aff., Ex. 13, Bucklin Depo. Tr., p. 46, lines 1 6).
E.The Regulation of Architecture in the BoroughThe historic district has been regulated since 1959 by a Special Act of the
Connecticut General Assembly (the Special Act). The 1959 Special Act
authorized consideration of the scale of a building but not the size of a
building. Doc.156-1 at 47 (citing Ex. A -- Nelson Aff., Ex. 10, p. 5) and
Doc.156-1 at 48 (citing Ex. A -- Nelson Aff., Ex. 10, pp. 1 - 5). Today, likewise,
the HDC must consider the scale (visual) of a building, but not the size (square
footage) of a building. See Conn. Gen. Stat. 7-147f(b): The commission shall
not consider interior arrangement or use. The trial courts decision uses the term
size when referring to interior square footage. Opin,p.23 n.14.
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The HDCs 30(b)(6) witness conceded the HDCs denial was based upon
consideration of the interior square footage of the use. Doc.156-2, p. 56 (Ex. A --
Nelson Aff., Ex 6, DAndrea (as Fed. R. Civ. P. 30(b)(6) witness) Depo. Tr., p. 56,
lines 8 11). HDC member Glenn Hillman (Hillman) drafted the denial letter
and admitted that he considered the interior square footage (size) as a reason for
denial. Doc.156-1 at 9 (citing Ex. A -- Nelson Aff., Ex 2, Hillman Depo. Tr., pp.
91 92).
The HDCs witness conceded the HDC is not required to abide by the
Secretary of the Interiors Standards. Doc.156-1 at 19 (citing Ex. A -- Nelson
Aff., Ex 6, DAndrea (as Fed. R. Civ. P. 30(b)(6) witness) Depo. Tr., p. 38, lines
13 16).
F. The Arbitrary History of the HDCHDC member Montebello testified that when the HDC makes a decision on
an application, there is no right or wrong. Doc.156-1 at 42 (citing Ex. A --
Nelson Aff., Ex 9, Montebello Depo. Tr., p. 57, lines 14 - 18). Montebello testified
he only votes when two commissioners vote one way, and two vote another way,
on the same application. Doc.156-1 at 43 (citing Ex. A -- Nelson Aff., Ex 9,
Montebello Depo. Tr., p. 62, lines 20 25). HDC members disagree about whether
or not an application should be approved or denied because each member has
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personal aesthetics opinions. Doc.156-1 at 23 (citing Ex. A -- Nelson Aff., Ex 7,
Sansing Depo. Tr., p. 66, lines 15 23).
HDC member Crist testified to a recent example of arbitrary enforcement.
Although the HDC determined that flower boxes conflict with historical standards,
after national news attention and community outcry the HDC allowed them to be
displayed. Doc.156-1 at 36 (citing Ex. A -- Nelson Aff., Ex 3, Crist Depo. Tr., p.
32, line 23 p. 34, line 2).
As noted above, the HDC granted a Certificate of Appropriateness allowing
the United Methodist Church to apply vinyl siding despite the HDCs
determination that vinyl siding does not comply with the HDCs standards for
historic preservation. Doc.156-1 at 153 (citing Ex. A-- Nelson Aff., Ex. 13,
Bucklin Depo. Tr., p. 41, lines 22 23)
Both Crist and Crawford voted against the majority of the HDC on the
Chabads Application in this case regarding the clock tower and cupola. Doc.156-1
at 40 (citing Ex. A -- Nelson Aff., Ex 3, Crist Depo. Tr., p. 37, lines 11 16);
Doc.156-1 at 30 (citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo. Tr., p. 78,
line 5 p. 79, line 14). Although the majority had voted against the Chabads
proposed clock tower and cupola, Crawford expressly noted that there were other
cupolas of a similar type in the historic district as that proposed by the Chabads
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Application. Doc.156-1 at 31 (citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo.
Tr., p. 78, line 5 p. 79, line 14).
Every HDC member has disagreed with other members on an application
and every member has voted against the majority on an application.6
G.The ApplicationThe Applications design focuses upon the Temple/Worship area and all
other uses in the design were accommodated by stacking the other uses on other
floors equal to the size and orientation necessary to create the Temple/Worship
area. Doc.156-1 at 77 (citing Ex. A -- Nelson Aff., Ex 11, Boe Depo. Tr., p. 55,
line 14 - p. 58, line 20). The size and scale are the smallest possible in order to
meet the Chabads religious mandates and the necessary lot orientation while
6 Doc.156-1 at 24 (citing Ex. A -- Nelson Aff., Ex 7, Sansing Depo.
Tr., p. 70, line 25 p. 71, line 18); Doc.156-1 at 25 (citing Ex. A -- Nelson Aff.,Ex 7, Sansing Depo. Tr., p. 70, line 25 p. 71, line 18); Doc.156-1 at 26 (citing
Ex. A -- Nelson Aff., Ex 8, Acerbi Depo. Tr., p. 46, lines 12 - 14); Doc.156-1 at
27 (citing Ex. A -- Nelson Aff., Ex 8, Acerbi Depo. Tr., p. 46, lines 1 - 14);
Doc.156-1 at 28 (citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo. Tr., p. 78,
line 5 p. 79, line 14); Doc.156-1 at 29 (citing Ex. A -- Nelson Aff., Ex 4,
Crawford Depo. Tr., p. 78, line 5 p. 79, line 14); Doc.156-1 at 32 (citing Ex. A
-- Nelson Aff., Ex 2, Hillman Depo. Tr., p. 80, line 18 p. 83, line 9); Doc.156-1
at 33 (citing Ex. A -- Nelson Aff., Ex 2, Hillman Depo. Tr., p. 80, line 18 p. 83,
line 9); Doc.156-1 at 34 (citing Ex. A -- Nelson Aff., Ex 5, Kuhne Depo. Tr., p.54, line 22 p. 57, line 8); Doc.156-1 at 35 (citing Ex. A -- Nelson Aff., Ex 5,
Kuhne Depo. Tr., p. 54, line 22 p. 57, line 8); Doc.156-1 at 38 (citing Ex. A --
Nelson Aff., Ex 3, Crist Depo. Tr., p. 32, line 16 p. 35, line 25); Doc.156-1 at
39 (citing Ex. A -- Nelson Aff., Ex 3, Crist Depo. Tr., p. 35, lines 17 - 25);
Doc.156-1 at 41 (citing Ex. A -- Nelson Aff., Ex 9, Montebello Depo. Tr., p. 56,
line 14 p. 57, line 1).
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complying with federal, state, and local laws. Doc.156-1 at 84 (citing Ex. B --
Eisenbach Aff., 12, 27 28; Boe Depo. Tr., p. 114, line 24 p. 115, line 3; p.
128, lines 10 21; p. 204, line 24 p. 205, line 2). The size and design of the
Temple/Worship area are based upon the Chabads weekly services and high holy
days in the same manner Christian facilities are made large enough to
accommodate Christian holidays at Easter and Christmas. Doc.156-1 at 81 (citing
Ex. A -- Nelson Aff., Ex 11, Boe Depo. Tr., p. 65, lines 2 - 11).
The size and design meet national historic preservation standards. Doc.156-
1 at 80 (citing Ex. A -- Nelson Aff., Ex 11, Boe Depo. Tr., p. 64, lines 15 - 20).
The size and scale are rendered from the standards found in the Department of
Interior Standards. Doc.156-1 at 83 (citing Ex. A -- Nelson Aff., Ex 11, Boe
Depo. Tr., p. 79, lines 6 - 11).
H.The HDC Meets to Discuss the ApplicationThe Application was reviewed over the course of four meetings. Doc.156-1
at 85 (citing Ex. D -- Herbst Aff., Ex. 1, and Ex. 2).
1. The First Meeting
The Chabad presented plans and materials and answered the HDCs
questions at the first meeting held on September 6, 2007. Doc.156-1 at 86 (citing
Ex. E -- Boe Aff., 20 - 35).
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During the meeting, HDC member Kuhne (Kuhne) made numerous strong
statements indicating her opposition to the proposed addition of the Star of David.
Doc.156-1 at 87 (citing Ex. E -- Boe Aff., 21). Kuhne stated that the Star of
David is not historically compatible with the district. Doc.156-1 at 88 (citing
Ex. E -- Boe Aff., 21). Kuhne also stated that the use of stained-glass windows
would be an inaccurate feature. Doc.156-1 at 89 (citing Ex. E -- Boe Aff., 21).
Yet, the United Methodist Church has stained-glass windows that display the Star
of David. Doc.156-1 at 90 (citing Ex. C -- Bearns Aff., 8).
HDC member Sansing regarded the statement the Star of David is not
appropriate for the historic district as an anti-Semitic statement. Doc.156-1 at 91
(citing Ex. A -- Nelson Aff., Ex. 7, Sansing Depo. Tr., p. 82, line 1 85, line 22).
Sansing further noted that anti-Semitism can sometimes be hidden and not
demonstrative overtly. Doc.156-1 at 92 (citing Ex. A -- Nelson Aff., Ex. 7,
Sansing Depo. Tr., p. 84, lines 11 - 14).
In response to the Chabads architects presentation, HDC member Acerbi
lifted her hands to block the entire proposed addition and stated: That looks just
fine. Doc.156-1 at 96 (citing Ex. E -- Boe Aff., 26). Acerbi added she did not
like the addition because it may impact her personally due to her own home being
nearby. Doc.156-1 at 97 (citing Ex. E -- Boe Aff., 27). Acerbi then concluded:
We have to get the public out on this project for the public hearing with a tone of
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urgency seaming dismissive of the Application. Doc.156-1 at 99 (citing Ex. E --
Boe Aff., 28).
HDC member Crawford also made a derogatory statement about the design
and added that it looked like it belonged in a mill town. Doc.156-1 at 94 (citing
Ex. E -- Boe Aff., 31 and 32).
Although state law prohibits any HDC discussion outside the public
meetings, after the meeting HDC members Hillman, Kuhne, and Crawford met
outside the public meeting to discuss the Chabads Application. Doc.156-1 at 10
(citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo. Tr., p. 66, line 20 p. 67, line
25; p. 69, line 19 p. 70, line 14).
2. The Second Meeting
The Chabad presented plans and materials and answered the HDCs
questions at the second meeting held on October 18, 2007. Doc.156-1 at 100
(citing Ex. E -- Boe Aff., 36 - 39).
At the meeting, Kuhne abruptly interrupted the Chabads attorney and
argued with him about the applicable law. Doc.156-1 at 101 (citing Ex. E -- Boe
Aff., 36). Kuhne then announced that the Application was not signed at the first
meeting. Doc.156-1 at 102 (citing Ex. E -- Boe Aff., 36). The HDCs attorney
then made the unilateral decision that the next meeting would be broken up into
two parts and demanded that the Chabads attorneys comply. Doc.156-1 at 103
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(citing Ex. D -- Herbst Aff., Ex. 1, p. 2). The third and fourth meetings were held
as the bifurcated meetings. Doc.156-1 at 104 (citing Ex. D -- Herbst Aff., Ex. 1
and Ex. 2).
3. The Third Meeting
The Chabad presented plans and materials and answered the HDCs
questions at the third meeting held on November 15, 2007. Doc.156-1 at 105
(citing Ex. E -- Boe Aff., 40).
In response to the HDCs comments during the first meeting, the Chabads
architect made numerous changes to the plans to accommodate the HDCs
demands. Doc.156-1 at 106 (citing Ex. E -- Boe Aff., 39). The Chabads
architect made each and every change requested by the HDC and the HDCs
architect to accommodate the HDCs demands. Doc.156-1 at 108 (citing Ex. A --
Nelson Aff., Ex 11, Boe Depo. Tr., p. 243, line 10; p. 244, line 25).
4. The Fourth Meeting
The Chabad presented plans and materials and answered the HDCs
questions at the fourth meeting held on December 17, 2007. Doc.156-1 at 109
(citing Ex. B -- Eisenbach Aff., 17).
At the meeting, the HDC refused to identify any additional concerns when
asked. Doc.156-1 at 111 (citing Ex. C -- Bearns Aff., 17).
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At various points, the HDCs attorney attempted to prevent the Chabad from
submitting relevant documents and further attempted to delete or remove
documents already submitted and marked as exhibits in the record. Doc.156-1 at
112 (citing Ex. C -- Bearns Aff., 20).
I. The HDC Denies the ApplicationThe HDC denial letter stated it would only approve an addition equal in
square footage to the current building. Doc.156-1 at 15 (citing DE # 137-6, Ex.
A -- Nelson Aff., Ex 21, p. 6). The square footage of the current building is 2,679
square feet.Id. The HDCs decision further dictates any addition must be
subordinate to the width of the current building.Id.7The HDC decision
concluded: Depending upon the foot print of the addition and the design of the
below grade spaces, the applicant should be able to design an addition that renders
a completed building with over 6,000 square feet of usable space.Id. (emphasis
supplied). Notably, the HDCs decision limits the Chabad to an addition equal in
square footage to the current building 2,769 and demands that the addition
7 Yet, the Wolcott Library addition greatly exceeded the width of the original
building and further the HDC conceded the Library addition was not equal to but
was larger than the original structure. Doc.140-1, p. 32.
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include a design of the below grade spaces8
so that the total size approximates
6,000 square feet of usable space.Id.
V. STANDARD OF REVIEW
This Court reviews a trial courts conclusions of law de novo. See Guiles ex
rel. Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006). This Court reviews a
trial courts findings of fact for clear error. See Guiles ex rel. Guiles v. Marineau,
461 F.3d 320, 323-24 (2d Cir. 2006).
Where jurisdiction is challenged solely on the pleadings and supporting
affidavits, the plaintiff need only make aprima facie showing of jurisdiction. See
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). The
trial court must construe jurisdictional allegations liberally and take as true
uncontroverted factual allegations.Id. The Court reviews a trial courts dismissal
pursuant to Fed. R. Civ. P. 12(b)(1) de novo accepting all factual allegations in
the complaint as true. See Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188
(2d Cir. 2009) (per curiam).
VI. SUMMARY OF ARGUMENT
The trial court held that, as a matter of law, RLUIPA 42 U.S.C.
2000cc(a)(1) Substantial Burden,did not apply in this case. Opin,p.13. The
8 Below grade spaces are not visible so they are beyond the HDCs regulation;
yet, the HDCs denial letter states the below grade spaces must be included in the
total square footage it would allow.
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trial court then concludes, as a matter of law, the Substantial Burden analysis is
based upon a neutral law of general applicability. Opin,p.13. As a result, the trial
court applied the rational basis test. Opin,p.14.
Under the Equal Terms, the trial court held the comparators were not valid.
However, throughout the HDCs denial, the document repeatedly states it is
attempting to retain the historical residential character, stating the proposal
would destroy any sense of the historical residential character of the building.
The Chabad was denied because the HDC felt the changes would cause the
Property to lose the historical residential character. The issue presented is
whether the additions met the stated governmental interest applied to the Chabads
Property whether the additions retained the historical residential character of the
property. The trial court erred by diverting away from the governmental interest
applied by the HDC to deny the Chabads application.
The trial courts error in misreading the purported government interest
caused it to misread the applicable standard. There is no provision in the Special
Act, or any subsequent regulation in any year, stating historic preservation may be
ignored. The same preservation of historical residential character has been in
effect since 1959. This was the standard applied to deny the Chabads application.
This standard was not applied to the other additions.
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As with the Equal Terms analysis, the trial court applied the same logic
when invalidating the comparators under Nondiscrimination. The trial court then
reviewed each of the remaining claims based upon the analysis applied to the
RLUIPA claims.
VII. ARGUMENT
POINT I
THE HDC APPLIED AN INDIVIDUALIZED ASSESSMENT TO THE
CHABADS APPLICATION
A. The Law
An application of land use regulations that involves application of
discretionary standards, such as determining a special or conditional use permit
application, is an individualized determination. See Fortress Bible Church v.
Feiner, 734 F. Supp. 2d 409, 498 (S.D.N.Y. 2010), affd, Fortress Bible Church v.
Feiner, No. 10-3634 (2d Cir. September 24, 2012).Fortress Bible did not either
affirm or reverse the trial courts holding on this issue. Slip Op.,p.24. Rather, this
Court noted this Circuit has not specifically addressed whether zoning decisions
trigger rational basis review or strict scrutiny.Id. at 23.
Fortress Bible cites to other courts, but several courts of appeals cases were
overlooked. Many courts of appeals cases have specifically analyzed RLUIPA as
individualized assessment cases. The Ninth Circuit followed other courts of
appeals to hold:
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In this case, while the zoning scheme itself may be facially neutral and
generally applicable, the individualized assessment that the City made to
determine that the Churchs rezoning and CUP request should be denied is
not. We have never held that a zoning regulation cannot impose a substantial
burden under RLUIPA simply by the fact that it is a zoning regulation. SeeGuru Nanak [Sikh Socy of Yuba City v. County of Sutter, 456 F.3d 978 (9thCir. 2006)]at 985-92 (specifically rejecting the countys contention that its
denial of the CUP at issue in that case falls outside the scope of RLUIPA
because its use permit process is a neutral law of general applicability, id.at 986); San Jose Christian College, 360 F.3d at 1033-36.
Intl Church of the Foursquare Gospel v. City of San Leandro, 634 F.3d 1037 (9th
Cir. 2011), opinion amended, No. 09-15163, 2011 WL 1518980 (9th Cir. Apr. 22,
2011), cert. denied, 132 S. Ct. 251 (2011). As in this case, the trial court had
granted summary judgment against the plaintiffs. The Ninth Circuit reversed, and
explained that the trial court erred in determining that the denial of space adequate
to house all of [a plaintiff churchs] operations was not a substantial burden.Id. at
1047.
In Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2007),
this Court held that when a religious organization contends that the denial of its
land use application has impeded its religious exercise by coercing it to function in
facilities inadequate to accommodate its religious exercise, the trial court must
conduct proper inquiry concerning the proposed use of the desired building and the
impact upon religious exercise that denial of that use will have.Id. at 348-349.
BothFortress Bible and Westchesterallowed a review of evidence presented
through a trial. In both cases, the evidence revealed RLUIPA violations even
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through the challenged laws on their face were neutral laws of general
applicability.
In Guru Nanak Sikh Socy of Yuba City v. County of Sutter, 456 F.3d 978,
987 (9th Cir. 2006), the Ninth Circuit held By its own terms, it appears that
RLUIPA does not apply directly to land use regulations such as the Zoning Code
here, which typically are written in general and neutral terms. However, when the
Zoning Code is applied to grant or deny a certain use to a particular parcel of land,
that application is an implementation under 42 U.S.C. 2000cc(a)(2)(C).
After determining the issue would be decided as a matter of law, the trial
court misunderstood the law. The trial court held the substantial burden analysis
under RLUIPA tracks the analysis under the Free Exercise Clause. Opin,p.8. The
trial courts legal analysis is based upon [Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 US 872 (1990)] stating, [e]ven if we were
inclined to breathe into [Sherbert v. Verner, 374 U.S. 398 (1963)] some life
beyond the unemployment compensation field, we would not apply it to require
exemptions from a generally applicable . . . law. Opin,p.11 n.8.9
9
The trial court noted the trial courts decision inFortress Bible, 734 F. Supp.2d 409, 49899 (S.D.N.Y. 2010) (finding a zoning application process to be an
individual assessment where the Town had no mechanistic assessments in place
for evaluating the Churchs application, relied on subjective opinions of the Town
Boards members, and treated the Church differently than other applicants).
However, the trial courts decision does not discuss the similar facts in the record
of this case.
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However, the trial court failed to understand both the Supreme Courts
precedent and the reason RLUIPA was enacted by Congress. First, the Supreme
Courts decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 537 (1993), explained that the limitation in Smith was not applicable to
individualized assessments, holding that when government has in place a
system of individualized government assessment of the reasons for the relevant
conduct. . . the government may not refuse to extend that system to cases of
religious hardship without compelling reason) (quoting Smith, 494 U.S. at 884)
(internal quotation marks omitted).
Second, Congress enacted RLUIPA specifically for the purpose of changing
the generally applicable rule and restoring the substantial burden test that had
existed prior to Smith, under which a plaintiff did not have to show that the
governments action is aimed at religion as a matter of statutory right in two
specific areas (i.e., land use and institutionalized persons). See 42 U.S.C.
2000cc(a)(2)(A), (B) and (C).
Congress enacted RLUIPA to backstop[ ] the explicit prohibition of
religious discrimination. Sts. Constantine & Helen Greek Orthodox Church v.
City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005).10
These provisions were
10 This Court cited with approval and followed the Seventh Circuits reasoning
in Westchester, 504 F.3d at 350-351.
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included in RLUIPA because Congress recognized that land use decisions are often
based, not on neutral generally applicable rules, but on individualized assessments
that grant or deny permission for a particular use, often without any clear
standards. See 146 Cong. Rec. 16,698-16,699 (2000) (hereinafter Joint
Statement); H.R. Rep. No. 219, at 20-21, 24, 106th Cong., 1st Sess. 21-24 (1999).
The Supreme Court recognized that such laws grant officials a greater
degree of discretion than do most laws. See MacDonald, Sommer & Frates v. Yolo
Cty, 477 U.S. 340, 350 (1986) (Local agencies charged with administering
regulations governing property development are singularly flexible institutions).
Congress found that such systems of individualized land use assessments readily
lend themselves to discrimination against religious institutions. See Joint Statement
at 16,699; H.R. Rep No.,supra, at 18-24. As the Seventh Circuit also recognized,
religious institutions especially those that are not affiliated with the
mainstream Protestant sects or the Roman Catholic Church [are
vulnerable] to subtle forms of discrimination when, as in the case of
the grant or denial of zoning variances, a state delegates essentially
standardless discretion to nonprofessionals operating without
procedural safeguards.
Sts. Constantine, 396 F.3d at 900;see also Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1225 (11thCir. 2004), cert. denied, 543 U.S. 1146 (2005).
These RLUIPA provisions reflect the Supreme Courts interpretation of the
Free Exercise Clause in Sherbert, and its progeny, which hold that laws burdening
religious exercise that have eligibility criteria [that] invite consideration of the
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particular circumstances and lend themselves to individualized governmental
assessment of the reasons for the relevant conduct, are subject to heightened
scrutiny. See Smith, 494 U.S. at 884.
The Supreme Court believes that facial neutrality is the minimum
requirement for a law to satisfy Free Exercise, Church of the Lukumi Babalu Aye,
508 U.S. at 533, but it is certainly not determinative.Id. at 534. A lack of true
neutrality may be masked as well as overt, id., requiring close examination of its
effect and real operation.Id. at 535.
InFirst Covenant Church of Seattle v. City of Seattle, 840 P.2d 174, 180
(Wash. 1992), the Washington Supreme Court held that historic preservation laws
were not neutral or generally applicable because the sites, improvements, and
objects they govern are arbitrarily selected, and the selection process requires
individual evaluation of each building, site, or improvement. See also, Konikov v.
Orange Cty, Fla., 410 F.3d 1323 (11th Cir. 2005); Cottonwood Christian Ctr. v.
Cypress Redevel. Agency, 218 F. Supp. 2d 1203, 1222-23 (C.D. Cal. 2002)
(Citys refusal to grant plaintiff's application for conditional use permit invites
individualized assessments of the subject property and the owners use of such
property and contain mechanisms for individualized exceptions.).
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B. The Facts
The trial courts decision provides very little factual discussion. The trial
courts error on the legal analysis appears to lead it to conclude that as a matter of
law no Substantial Burden could be proven. The trial court provides this Court
with little opportunity to review facts the trial court relied upon.
The only facts stated by the trial court in the Substantial Burden section are
the following disputed facts:
1. Defendants argue that the size of Chabads proposed renovation is
unnecessary given the size of Chabads congregation. Opin,pp.9-10. The Chabad
disputes this fact because the current needs of its congregation are not being met,
and that every aspect of the renovation reflects the spiritual and physical needs to
further Plaintiffs mission. Opin,p.10.
2. Defendants argue that large portions of the proposed renovation would be
devoted to secular purposes, including the Rabbis residential quarters and a
swimming pool in the basement. Opin,p.10. The Chabad disputes this fact because
even the residential areas of the proposed renovation will be dedicated to serve
the religious needs of Plaintiffs participants and the Rabbis family. Opin,p.10.
The two items above are the trial courts single sentence summaries of an
extensive record presented by the Chabad. The record contains specific details
from sworn testimony supporting the Chabads statements. See Doc.156-1 at 56-
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74 (citing Ex. B -- Eisenbach Aff., 2-11). In summary, the Chabad expends
thousands of dollars to rent space for Gan Israel and other programs including
renting a pool and shuttling participants around the area for program services.
Doc.156-1 at 73 (citing Ex. B -- Eisenbach Aff., 9). Like other religious faiths
(such as Christian churches), additional space is necessary to accommodate for the
times when the building will be filled. Doc.156-1 at 66 (citing Ex. B -- Eisenbach
Aff., 11). In countless public addresses, the Lubavitcher Rebbe called on his
followers to make their homesBatei Chabad-- Chabad Houses. Doc.156-1 at 69
(citing Ex. B -- Eisenbach Aff., 5). The mandates of the Chabads faith are found
in a long library of texts discussing the use of its Chabad House for religious
purposes. Doc.156-1 at 70 (citing Ex. B -- Eisenbach Aff., 6). The record
explicitly details how each area of the entire Chabad House is used for religious
purposes. Doc.156-1 at 67-73 (citing Ex. B -- Eisenbach Aff., 2-9).
When applying the reasoning of decisions from this Court, the Supreme
Court, and the Ninth and Seventh Circuits to the case at hand, the Chabad raises
issues of material fact as to whether the HDCs denial constituted a substantial
burden on its religious exercise.
1. Inadequate facilities
In Westchester, this Court held that a land use regulation prohibiting a
Jewish day school from expanding its facilities to provide much-needed additional
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space for religious education and practice constituted a substantial burden on the
organizations religious exercise. This Court has held that where there has been a
denial of a religious institutions building application, courts appropriately speak of
government action that directly coerces the religious institution to change its
behavior, rather than government action that forces a religious entity to choose
between religious precepts and government benefits.Id. at 349;see also Jolly v.
Coughlin, 76 F.3d 468, 477 (2d Cir. 1996), quoting Thomas v. Review Board of the
Indiana Employment, 450 U.S. 707, 718 (1981) (a substantial burden exists where
the state puts substantial pressure on an adherent to modify his behavior and to
violate his beliefs);Reaching Hearts International, Inc. v. Prince Georges
County, 584 F.Supp.2d 766, 785 (D. Md. 2008), quoting Lovelace v. Lee, 472 F.3d
174, 187 (4th Cir. 2006) (substantial burden where local government, through act
or omission, puts substantial pressure on an adherent to modify his behavior and to
violate his belief). Moreover, a burden imposed by governmental action or
omission need not be insuperable to be substantial. Westchester, 504 F.3d at 349;
Reaching Hearts Intl, Inc., 584 F.Supp.2d at 785.
The trial court notes the this fact, stating the current needs of its
congregation are not being met, and that every aspect of the renovation reflects
the spiritual and physical needs to further Plaintiffs mission. Opin,p.10. In
Westchester, this Court held that when a religious organization contends that the
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denial of its land use application has impeded its religious exercise by coercing it
to function in facilities inadequate to accommodate its religious exercise, the trial
court must conduct proper inquiry concerning the proposed use of the desired
building and the impact upon religious exercise that denial of that use will have.Id.
at 348-349.
Although the trial court clearly notes the fact is disputed, the trial court
failed to provide a proper inquiry. UnlikeFortress Bible and Westchester, where a
review of evidence was presented through a trial, the trial court issued summary
judgment.
This Court recently reaffirmed this substantial burden review inFortress
Bible. The trial court credited Karamans testimony that the Churchs Mount
Vernon facility was not adequate to accommodate its religious practice.Fortress
Bible, Slip Op.,p.20.11
11 In addition to cases from this Court, the Ninth and the Seventh Circuits,
numerous district court decisions support the Chabads claim that it raised a triable
issue of material fact as to whether the HDC substantially burdened its religious
exercise. See, e.g., Rocky Mountain Christian Church v.Board of Cnty. Commrs,612 F. Supp. 2d 1163, 1170 (D. Colo. 2009) (denial of churchs expansion
proposal can constitute a substantial burden even if religious activity continues at
the current site);Albanian Associated Fundv. Township of Wayne, No. 06-cv-3217(PGS), 2007 WL 2904194, at *10 (D.N.J. Oct. 1, 2007) (fact that plaintiffs may
use an inadequate facility and practice some aspects of their religion in that facility
does not render any burden on religious exercise insubstantial); Mintzv.RomanCatholic Bishop of Springfield, 424 F. Supp. 2d 309, 321 (D. Mass. 2006)(inability to build a parish center, which would serve as a meeting place for parish
counsel, facilitate church-related gatherings, and alleviate rectory crowding,
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The same facts presented inFortress Bible were presented in this case. The
Chabads current location is inadequate to carry out the faith and practice required
by the Orthodox Hasidic religion. Doc.156-1 at 2. Due to numerous limitations,
the Chabad is unable to fulfill its religious mandate at the current location.
Doc.156-1 at 3. The Chabad has lost parishioners because it is unable to practice
its religion at its current location. Doc.156-1 at 4.
InFortress Bible,this Court found a substantial burden based upon the same
facts presented in this case, finding the Church was substantially burdened by its
inability to construct an adequate facility.Fortress Bible, Slip Op.,p.21.
2. Arbitrary, Capricious or Unlawful
This Court has acknowledged that substantial burden may be demonstrated
where the record casts doubt on good faith of government actors or where
would substantially burden all these religious activities); Congregation Kol Amiv.Abington Twp., No. 01-1919, 2004 WL 1837037, at *8-9 (E.D. Pa. Aug. 17,
2004) (denial of variance preventing development and operation of place of
worship constitutes substantial burden), amended, No. 01-1919, 2004 WL 2137819
(E.D. Pa. Sept. 21, 2004); Castle Hills First Baptist Church v. City of Castle Hills,No. 5:01CV01149, 2004 WL 546792, at *10 (W.D. Tex. Mar. 17, 2004) (denial of
special use application to expand facility for religious education may substantially
burden religious exercise if it limits the number of children who can be educated
and the quality of the educational programs offered); Cottonwood Christian Ctr.v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1212, 1226-1227 (C.D.
Cal. 2002) (substantial burden may exist where the physical limitations of churchs
current facility limited its ability to conduct many of its programs, its outreach
efforts, and to meet at one time in a single location).
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government defendants have acted in an arbitrary, capricious or unlawful nature
with regard to the religious organizations application. Westchester, 504 F.3d at
350-351 (citation omitted).
The trial court notes the Chabad asserts that the HDCs decision was
arbitrary and illegal because the HDC improperly considered the proposed square
footage of Chabads proposed renovation. Opin,p.10. In a footnote, the trial court
rejects this fact, holding there is nothing in the record to indicate that it is not the
HDCs normal procedure to consider the square footage -- as a measure of scale -
- of a proposed project. Opin,p.13 n.9.
Two facts directly contradict the trial court. First, the record clearly states
the HDC is prohibited from considering the square footage. Conn. Gen. Stat. 7-
147f(b) expressly states, The commission shall not consider interior arrangement
or use. The trial courts decision uses the term size when referring to interior
square footage. Opin,p.23 n.14. The HDC is only permitted by statute to review
exterior elements. Logic dictates that interior arrangement or use does not create
exterior visual impact. For this reason, the statute states the HDC cannot consider
interior arrangement or use. The record clearly contradicts the trial court.
The HDCs 30(b)(6) witness conceded the HDCs denial was based upon
consideration of the interior square footage of the use. Doc.156-2, p. 56. HDC
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member Glenn Hillman (Hillman) drafted the denial letter and admitted that he
considered the interior square footage as a reason for denial. Doc.156-1 at 9.
Second, the trial court confuses scale with square footage. Logically,
visual scale is entirely distinct from square footage (size) because the same
building footprint could expand vertically to great height while only utilizing a
single story. A building of great height would be large in scale visually, but
much smaller in square footage than a comparable building using the same vertical
height with many floors. The trial court appears to concede this logic by stating it
is not clear from the record that Chabads proposed addition must necessarily be
less than or equal to the square footage of the current property in order to be an
appropriate scale, especially given the downward slope of the property and
Chabads proposed underground level. Opin,p.13,p.9.12
The error is further revealed in the HDCs denial letter. The HDCs denial
letter stated it would only approve an addition equal in square footage to the
current building. Doc.156-1 at 15. The square footage of the current building is
2,679 square feet.Id. If visual scale is the same as square footage (size), then
adding 2,679 square feet to the rear of the current building on one level while
going vertically five thousand feet would not have the same visual impact. The
12 The trial court adds this is not an issue in this case. However, this is exactly
the issue presented regarding what the HDC would allow.
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addition would add only 2,679 square feet, but would be much larger in visual
scale.
Logically, the HDC has no concern over how an architect divides up the
interior spaces of a building. The HDCs review is limited to the exterior visual
elements and nothing more. See Conn. Gen. Stat. 7-147f(b).
This Court held that when the agencys actions are arbitrary, capricious,
unlawful, or taken in bad faith, a substantial burden may be imposed because it
appears that the applicant may have been discriminated against on the basis of its
status as a religious institution. Westchester, 504 F.3d at 350-51;see alsoSts.
Constantine, 396 F.3d at 900. Significantly, a finding of arbitrary, capricious,
unlawful, or taken in bad faith is mutually exclusive. This Court did not hold each
of these findings must be evident. Rather, just one of these would support a finding
in the Chabads favor. At a minimum, a reversal is necessary for a trial.13
3. Final Decision
The illegal basis for the HDCs denial letter also foretells the Chabad will
not be granted a revised application. The HDCs denial was, in effect, an absolute
denial of the Chabads efforts to meet its religious obligations. Westchester, 504
F.3d at 352.
13 The Chabad also provided the trial court with briefing on the state courts
standards regarding the sufficiency of evidence. The HDC clearly failed to meet
the standards required when deciding an application. See Doc.137-1,pp.22-27.
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The HDCs denial states it would consider a new application, but states any
application would not be approved if the Chabad requests more than 2,679 square
feet. Doc.156-1 at 15 (citing DE # 137-6, Ex. A -- Nelson Aff., Ex 21, p. 6).
First, the limitation to 2,679 square feet is illogical. As discussed above, the
square feet limitation is not related to any exterior features and has no relation to
the visual scale of an addition.
Second, the limitation to 2,679 square feet is illegal. As discussed above, the
HDC is prohibited from regulating the architects interior design and arrangement.
Third, as discussed below, the government interest purportedly being
protected in this case the HDCs interest in retaining the historical residential
character is not even met by a limitation of square feet.
The HDCs denial cuts against this Courts jurisprudence concerning finality
and futility under RLUIPA. This Court previously recognized that where any
further application would be futile, the applicant is not required to continually
submit revised applications at great expense and in the face of almost sure
rejection. Westchester, 504 F.3d at 352.
The Chabads architect made each and every change requested by the HDC
and the HDCs architect to accommodate the HDCs demands. Doc.156-1 at 108.
At the fourth and final meeting, the HDC refused to identify any additional
concerns when asked. Doc.156-1 at 111.
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InFortress Bible, this Court held a renewed application would be futile
noting the Town continually rejected the Churchs attempts to accommodate its
stated concerns. The record easily supports the district courts finding that the
Towns actions amounted to a complete denial of the Churchs ability to construct
an adequate facility rather than a rejection of a specific building proposal. Slip
Op.,p.21, citing Westchester, 504 F.3d at 349.
This Court held a substantial burden may be shown where a religious
institution received less than even-handed treatment or where government
officials inconsistently applied specific policies and disregarded relevant findings
without explanation. Westchester, 504 F.3d at 351, quoting Guru Nanak, 456
F.3d at 981- 91.14
When a denial of an organizations request to expand facilities leave
organizations without alternatives, Westchester, 504 F.3d at 352, such decisions
place a significantly great restriction or onus on religious exercise, Guru Nanak,
456 F.3d at 988 (citation omitted), and therefore constitute a substantial burden on
religious exercise for the purposes of RLUIPA. In this case, the HDC has decided
with finality that it will not approve any addition more than 2,769 square feet. At a
minimum, the trial courts error on the legal analysis and error on the disputed
facts regarding substantial burden mandate reversal for a trial of these issues.
14 The HDCs arbitrary and inconsistently applied actions are documented in
Section IV.F.
Case: 12-1