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ALI-CLE 2015 Eminent Domain and Land Valuation Litigation & Condemnation 101 Agendas And Faculty Announced
Posted on 10/23/14 by Evan Seeman and Dwight Merriam          

The agendas and faculty lists have been released for the 2015 ALI-CLE Eminent Domain and Land Valuation Litigation (the "masters" program, now in its 32nd year), and Condemnation 101: How to Prepare and Present an Eminent Domain Case (the boot camp or refesher course on eminent domain fundamentals).  The program will take place from February 5-7 in San Francisco.  Information about registration is available here.

Robinson & Cole lawyers Dwight Merriam and Edward O’Hanlan will be speaking at what looks to be a promising program.  Highlights of the program are below.

Denominators and Bright Lines: The Search for the Relevant Parcel in Eminent Domain and Regulatory TakingsBradford B. Kuhn, Nossaman LLP, Irvine, California, Dwight H. Merriam, Robinson & Cole LLP, Hartford, Connecticut, and Mark M. Murakami, Damon Key Leong Kupchak Hastert, L.C., Honolulu.

Entry Statutes: A Taking or a Free Pass? Norman E. Matteoni, Matteoni O’Laughlin & Hechtman, San Jose, California, Edward V. O'Hanlan, Robinson & Cole LLP, Stamford, Connecticut, and Michael F. Yoshiba, Richards, Watson & Gershon, P.C., Los Angeles

Eminent Domain National Law Update – Robert H. Thomas, Damon, Key, Leon, Kupchak, Hastert and Amy Brigham Boulris, Gunster, Yoakley & Stewart, P.A., Miami (and me)

Five Simple Rules for Partial TakingsChristian F. Torgrimson, Pursley Friese Torgrimson, Atlanta

When Fourth Amendment Seizures Become Fifth Amendment TakingsHerbert W. Titus, William J. Olson, P.C., Vienna, Virginia

Running the Case: A Team Approach to Working with All the Players –  William E. RyanMichael W. Ryan, and Lauren E. Ryan, Ryan & Ryan, Chicago

When Judges Overstep Their Authority: What To Do in the Courtroom – Edward G. Burg, Manatt, Phelps & Phillips, LLP, Los Angeles

Condemnors’ Special Considerations When Using Outside Counsel – David L. Arnold, Pender & Coward, P.C., Suffolk, Virginia, and Brandee L. Caswell, Faegre Baker Daniels LLP, Denver

Pipelines and Immediate Possession: The Looming Circuit Split Controversy – Justin Hodge, Johns Marrs Ellis & Hodge LLP, Houston and Jeremy P. Hopkins, Waldo & Lyle, P.C., Norfolk, Virginia

Contaminated Land: The Impact on Use, Utility, Value and Mitigation Darius W. Dynkowski, Ackerman Ackerman & Dynkowski P.C., Cleveland; Thomas L. Stokes Jr., Stokes Environmental Associates, Norfolk, Virginia

Equal Access to Justice Act: Recovering Attorney's Fees if Uncle Sam Condemns –  Stephen J. Clarke, Waldo & Lyle, P.C., Norfolk, Virginia

The Red-headed Step Child: Overcoming Reluctance to Take Relocation Cases ­– Jaclyn Casey Brown, Lewis Roca Rothgerber LLP, Denver, Robert Denlow,Denlow & Henry, St. Louis, and Michael Sullivan, Range West Consultants LLC, Prescott, Arizona

What's Wrong with the Law of Valuation in Eminent Domain: Four Rules to ChangeJohn C. Murphy, Murphy & Evertz, LLP, Costa Mesa, California

How Jury Instructions Frame Your CaseAndrew Prince Brigham, Brigham Property Rights Law Firm PLLC, Jacksonville, Florida and Jack R. Sperber, Faegre Baker Daniels LLP, Denver

Challenging the TakeDana Berliner, Director, Institute for Justice, Arlington, Virginia, Janet Bush Handy, Deputy Counsel, Assistant Attorney General, Maryland State Highway Administration, Baltimore and Matthew W. Fellerhoff, Strauss Troy Co., LPA, Cincinnati

How to Simplify Valuation in the CourtroomLeslie A. Fields, Faegre Baker Daniels LLP, Denver, Susan Macpherson,Senior Litigation and Jury Consultant, NJP Litigation Consulting, Minneapolis, Minnesota, Richard Marchitelli, MAI, Executive Managing Director, Valuation and Advisory, Cushman & Wakefield, Charlotte, North Carolina, and Joe Waldo

Proving Your Case: Staying Focused - H. Dixon Montague, Vinson & Elkins LLP, Houston

Entry Statutes: A Taking or a Free Pass? Norman E. Matteoni, Matteoni O’Laughlin & Hechtman, San Jose, California, Edward V. O'Hanlan, Robinson & Cole LLP, Stamford, Connecticut, and Michael F. Yoshiba, Richards, Watson & Gershon, P.C., Los Angeles

§ Valuation of Temporary Construction Easements – Keith M. Babcock, Lewis, Babcock & Griffin, LLP, Columbia, South Carolina and Randall A. Smith, Smith & Fawer, L.L.C., New Orleans

Severance Damages in Partial Takings Cases: Lessons Learned and Future Considerations - Anthony F. Della Pelle, McKirdy & Riskin P.A., Morristown, New Jersey

Cross Examining Appraisers: Taking Apart the Key Witness – Jill S. Gelineau, Schwabe, Williamson & Wyatt, P.C., Portland, Oregon and Michael Rikon, Goldstein, Rikon, Rikon & Houghton, P.C., New York

Dropping the Bomb: Challenging Highest and Best UseMark D. Savin, Fredrikson & Byron, P.A., Minneapolis

Opening and Closing: Laying Out Your Case and Bringing It Home Joseph P. Suntum, Miller, Miller & Canby, Chartered, Rockville, Maryland

Update on Regulatory Takings Jurisprudence: Decisions that Hit Close to Home – Michael M. Berger, Manatt, Phelps & Phillips, LLP, Los Angeles

Novel Takings Theories: Testing the Boundaries of Property Rights – James S. Burling, Director of Litigation, Pacific Legal Foundation, Sacramento

National Forum: Issues Facing Practitioners Around the Nation and Discussion of Stop and Seizures - plenary session, open forum

One highlight not listed above is the Friday keynote session with Gideon Kanner (Professor of Law Emeritus, Loyola Law School, Los Angeles) and Michael M. Berger (Manatt, Phelps & Phillips, LLP, Los Angeles), The Last 30 Years of Eminent Domain Jurisprudence and its Impact on Today's Practice.  There will also be a session on Ethics, so you can fulfil your bar association's mandatory ethics CLE requirement, if you have one




Conn. Killer's Kosher Request Illustrates National Debate*
Posted on 10/16/14 by Evan Seeman and Dwight Merriam          

Isaac Avilucea, The Connecticut Law Tribune

October 13, 2014

A Muslim prisoner has taken Arkansas prison officials to the U.S. Supreme Court for refusing to allow him to grow a one-inch beard for religious purposes. In New Mexico, a prisoner sued corrections officials for not allowing him to practice Satanism.

Here in Connecticut, convicted Cheshire home invasion murderer Steven Hayes recently made headlines when he sued the state for access to kosher food because, he claims, he is now an Orthodox Jew.

In these cases, experts say, the legal questions go beyond whether the religious requests are reasonable or even if prisoners such as Hayes are actually legitimate members of the Jewish faith. The question is whether prison officials are violating the Religious Land Use and Institutionalized Persons Act (RLUIPA). Enacted in 2000, the law is usually discussed in Connecticut in connection with zoning disputes involving religious groups seeking to build houses of worship. But another provision gives inmates enhanced protection for their religious beliefs.

For several reasons, legal experts said, prisoners are especially vulnerable to religious belief abuses. Often, they don't have the financial means to hire lawyers to represent them in religious abuse cases. Then there's public sentiment which, in the Hayes case and other instances, tends to lean in favor of prison officials.

But Hope Metcalf, executive director of Yale's Orville H. Schell Jr. Center for International Human Rights, said the legal community must take prisoners' claims seriously, regardless of why they're imprisoned.

"There are some cases that stand out for seeming unsympathetic or even frivolous," Metcalf said in an email to the Law Tribune. "The procedural bars faced by any pro se litigant—and particularly prisoners—are incredibly high, and judges have all kinds of tools to weed out meritless claims."

David McGuire, staff attorney at the American Civil Liberties Union of Connecticut, couldn't speak to the exact number of prisoners in Connecticut who make religious rights claims. But generally speaking, he said those that do so are self-represented. In cases where prisoners make RLUIPA claims, he said decisions hinge on "how deferential judges are to prisons' reasons for limiting religious expression."

In the case before the U.S. Supreme Court, for example, the growing consensus is that Gregory Holt, also known as Abdul Maalik Muhammad, will win. During oral arguments, the justices peppered attorneys representing Arkansas prison officials with questions about why Holt, who says Allah commands him to wear a beard, hasn't been allowed to honor the Muslim practice.

Forty states already allow Muslims to grow beards, and Holt even offered to compromise with prison officials by keeping his beard an inch long. But prison officials claimed his beard hampered officials from identifying prisoners and jeopardized other prisoners' safety at the jail. The justices seemed skeptical, with Justice Samuel Alito questioning why Holt couldn't just comb the beard to alleviate prison officials' concerns about contraband or weapons being smuggled in by the whiskers.

"If there's anything in the beard, such as a tiny revolver, it'll fall out," Alito said.

Hayes' case isn't as clear-cut. He is on death row at Northern Correctional Institute in Somers after being convicted of killing Jennifer Hawke-Petit and her daughters, Hayley and Michaela, in 2007. He says he's losing weight because he refuses to eat prison food that's not kosher. He claims in his lawsuit that prison officials have denied requests since May 2013 for kosher food. He says he has instead been offered "kosher-like food," prepared on the same surfaces and in the same pots and pans as nonkosher food. That food, however, is contaminated, in Hayes' view, because it's mixed with nonkosher food. "Kosher-like is not kosher," Hayes said in the lawsuit.

Some Jewish groups have questioned Hayes' sincerity. They say he isn't truly Jewish because his mother wasn't Jewish (the religion passes from mother to children) nor has he converted with the help of a rabbi. Hayes acknowledges that he is "self-converted."

Rabbi Menachem Katz, the director of prison programs at the Aleph Institute, a Florida-based group that advocates for Jewish prisoners' rights, said his organization isn't involved in, and takes no position on, Hayes' lawsuit. But his experience is that Connecticut is notoriously bad at accommodating kosher food requests. And he doesn't see that changing soon.

"It has a lot of work to do on the kosher food front," Katz said. "It's gonna take a bona fide Jewish inmate to sue them and win. That's the only language they understand. They don't wanna play ball [with us]."

For the nearly 5,000 Jewish prisoners housed in U.S. prisons, Katz said refusal of kosher meals is the most commonly cited complaint. Other gripes deal with lack of access to prison chapels and religious services. Most prisons require that a handful of prisoners be from a denomination before services can be scheduled.

Self-converted Jewish prisoners such as Hayes must pass a sort of sincerity test used to root out impostors, which could include an interview with a prison chaplain, Katz said. "If they say they're [originally] from the Catholic faith and they need a kosher diet, they're gonna be laughed off the stage," he said. "The government can't decide, 'You are Jewish; you are not Jewish.' But the [Department of Correction] can decide when someone is playing them."

Most experts agree that Hayes faces an uphill battle in convincing judges he is a true follower of the Jewish faith. McGuire said each such claim is "incredibly fact-specific," further complicated because prisoners usually aren't well versed in law. "The courts are left in poorly briefed issues," he said. "The prisoners are not clear in what they need to prove."

If inmates can demonstrate the sincerity of their religious beliefs, the burden shifts to prison officials to explain why rules prohibiting prisoners' religious expression is of a "substantial government interest," McGuire said, citing the language of RLUIPA.

Usually, these issues are decided through informal prison grievance processes. McGuire said only the most egregious claims of religious rights abuses make it to court. And when they do, he said, "a lot of these don't really go anywhere because the prisoners can't properly construct arguments."

Metcalf, the Yale expert, said, "outlier cases" can steal the headlines because they have "entertainment value." They also run the risk of alienating people from paying attention to prisoners' rights abuses. That's why courts play a vital role in "trying to ensure that our prisons represent our values of dignity and fair treatment for all people," she said.

*This article is reprinted with the permission of the Connecticut Law Tribune.




Upcoming Webinar: “Sex, Guns, and Drugs: Planning for Controversial Land Uses”
Posted on 10/15/14 by Evan Seeman and Dwight Merriam          

The American Planning Association’s Planning & Law Division is hosting a webinar on October 22, 2014 that may be of interest to many of our readers and to others looking for a break from RLUIPA.  Here is a description of the program:

The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms.  But it’s not that simple.  Businesses that rely on these constitutional guarantees continue to generate controversy in communities across the country.  To compound matters, state legislatures from Arizona to Massachusetts have been busy granting new — and in many cases, previously unheard of — rights to marijuana and firearm retailers. 

This has rapidly drawn planners and zoning practitioners into the debate over how these businesses best fit into their communities, and whether their communities are legally obligated to accommodate these uses in the first place.  Spend an hour learning about the issues and regulatory strategies from around the country.

It will be presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink.  Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning & Law Division membership.  For more information, including registration, click here.




2d Cir Extends Williamson County Ripeness "Final Decision" Requirement To ADA Claims
Posted on 10/14/14 by Evan Seeman and Dwight Merriam          

[Editors' Note: This posting is reprinted with permission from the Inverse Condemnation blog.]

Ah, Williamson County. We've ranted about it before, so we won't do so here (again). But takings mavens know that a property owner must meet two tests before she can raise a takings claim against a state or local government in federal court: the state or local government must have reached a final decision on the uses to which her property may be put, and she must seek (and be denied) just compensation via state procedures.

We've always viewed both parts of the test as very "takings-specific" and not really applicable to other areas. The rationale supporting the final decision requirement is that a court really can't tell whether property has been "taken" until it understands what uses may be allowed by the state or local government. Absent such a decision, the government may allow some economically beneficial use. Similarly, the state procedures test rationale is that a property owner has not had its property taken "without just compensation" until the state has denied recovery via an inverse condemnation or regulatorty takings claim in state court. We don't agree with that reasoning, but there it is.  But the courts have not read the final decision requirement of Williamson County so strictly, and have, as of late, applied it to a variety of non-takings claims, including  substantive due process, RLUIPA, and others. 

Now, the Second Circuit, has  extended it to claims under the Americans With Disabilities Act in Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (Oct. 2, 2014). There, the plaintiff was denied permission to operate a treatment facility, and it brought suit under the ADA, asserting intentional discrimination and failure to offer a reasonable accommodation on the part of the City, and seeking an injunction.  The district court dismissed because Sunrise had not sought a variance. The Second Circuit agreed.

While it acknowledged that Williamson County was a takings doctine ("The argument is not without appeal."), it held that because Sunrise was seeking an injunction and not money damages:

We need not address here whether a property owner who claimed that a local official vetoed his or her development project out of hostility based on the owner's race, gender, disability, or the like, in violation of federal statutory or constitutional law, could seek immediate recompense in federal court from that official for the dignitary or emotional harm inflicted by the official even in the absence of a final decision on the development proposal or without pursuing an administrative appeal of that action. That question is not presented in this case, because Sunrise does not seek compensatory damages from the official who it claims acted out of discriminatory motivation, but rather seeks an injunction blocking the disapproval and authorizing construction of its project. Regardless of the basis of the claim that the local action violated federal rights, the relief sought brings the case squarely within the compass of Williamson County and its progeny.

Even if it were true that the challenged rejection by the Building Department was the product of a discriminatory motivation on the part of the official who issued it, that illegal act would not necessarily require, as a remedy, the issuance of a permit to Sunrise. If Sunrise proceeds with its application, the rejection may be reversed, and the project may be permitted to proceed—or the application may be rejected on other, non-discriminatory grounds. Only after Sunrise completes the process will it be known whether the allegedly discriminatory decision of the official had any effect at all on Sunrise's application.

Slip op. at 12-13.

We can't quite agree with the statement that "[e]ven if it were true that the challenged rejection by the Building Department was the product of a discriminatory motivation on the part of the official who issued it, that illegal act would not necessarily require, as a remedy, the issuance of a permit to Sunrise." Why not? If the only reason the permit was denied was a bad one, then wouldn't an injunction requiring the Building Department to stop using that bad reason as the reason to deny a permit mean that the permit must be issued? And how is the availability of a "variance" or administrative relief from the Building Department’s denial -- if, indeed, the administrative process is even capable of remedying intentional misconduct by agency officials -- a true remedy for the (allegedly) discriminatory conduct? 

The court tried to carve out exceptions to this rule: 

We think, therefore, that a plaintiff alleging discrimination in the context of a land-use dispute is subject to the final-decision requirement unless he can show that he suffered some injury independent of the challenged land-use decision. Thus, for example, a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1541 (11th Cir. 1994), or the manipulation of a zoning process out of discriminatory animus to avoid a final decision, Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 199–200 (5th Cir. 2000). In those cases, "pursuit of a further administrative decision would do nothing to further define [the] injury," and the "claim should not be subject to the application of the Williamson ripeness test." Dougherty, 282 F.3d at 90.

Slip op. at 13-14. 

In other words, it's OK to intentionally discriminate in the land entitlement process, as long as the only harm is denial of the entitlement sought, and there's some possible administrative relief down the line that might correct the result in the issuance of the permissions.

Until then, don't come crying to federal court, at least not in the Second Circuit. 

Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (2d Cir. Oct. 2, 2014)




Second Circuit Restores Litchfield Synagogue's Lawsuit*
Posted on 10/13/14 by Evan Seeman and Dwight Merriam          

Jay Stapleton, The Connecticut Law Tribune
September 30, 2014

A lawsuit filed by a Litchfield Jewish organization has been reinstated, giving the group new hopes it will ultimately win approval to build a 20,000-square-foot synagogue and community center near the historic green.

Chabad Lubavitch filed its lawsuit against the Litchfield Historic District Commission in 2007, after the commission had rejected plans for the synagogue. Chabad and its lawyers met with a setback this past February, when U.S. District Judge Janet Hall granted a motion for summary judgment and dismissed the lawsuit. Hall found there was no evidence of religious discrimination in the zoning application process.

Lawyers for Chabad, including Kenneth Slater of Halloran & Sage in Hartford, appealed the ruling to the U.S. Court of Appeals for the Second Circuit, claiming the organization should have a right to proceed under provisions of the Religious Land Use and Institutionalized Persons Act. RLUIPA 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 panel of the appeals court ruled on Sept. 23 that Hall was wrong to dismiss the lawsuit and remanded the case back 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 an application that was "identical in all relevant aspects" to Chabad's proposal.

"We conclude that the [Historic District Commission's] review of the Chabad's application was ... subject to RLUIPA's 'substantial burden' provision, and that the Chabad need not cite an 'identical' comparator to establish a claim under RLUIPA's nondiscrimination provision," the panel wrote.

The appeals court panel did uphold some of Hall's other rulings in the case, including her dismissals of Chabad Lubavitch's claims that its constitutional rights to freedom of religion and equal protection were violated.

Supreme Court Review?

Slater called the decision "extremely important" in that it reversed the district court ruling "that a religious organization can never succeed on a claim that an agency imposed a substantial burden on a religious institution without showing there was discrimination to a religious use."

As a result, the Second Circuit decision could benefit other religious institutions in future litigation, he said.

Slater said the court "wisely determined" that RLUIPA's substantial burden provision provides a remedy for religious institutions when a zoning board or other agency "could otherwise hide behind the fact that broad discretionary regulations may be applicable to other land uses to shield veiled discrimination of a religious land use."

"With this ruling," he said. "We are confident we can succeed on in this case."

However, C. Scott Schwefel, a lawyer for the Historic District Commission, said the case is far from over. He said the lawsuit will now return to U.S. District Court and, an appeal to the U.S. Supreme Court is possible. "We're confident that the district court will determine that there is still no genuine issue of material facts and will again dismiss the action," he said.

Chabad Lubavitch is a Hasidic movement within orthodox Judaism. The group has been active in Litchfield since 1996, and provides social service, educational and programs in the arts. According to court documents, the Historic District Commission ruled Chabad Lubavitch's proposed 17,000-square-foot addition to an 1870s Victorian house, which would be used as a synagogue and a residence for its rabbi, was too large and out of character for the Litchfield historic district, which features many homes from the late 18th and early 19th centuries.

But Rabbi Joseph Eisenbach of Chabad Lubavitch disputed the commission's use of the 17,000-square-foot figure, saying it included the basement and attic. He said the footprint of the two-story house and addition would be less than 4,000 square feet and the total area of the project should be listed as less than 8,000 square feet.

Last year, the Historic District Commission and the town zoning board approved Chabad Lubavitch's plans to use the same 19th-century building near the Litchfield Green for its religious and community activities, as long as Chabad did not expand the building.

*This article is reprinted with the permission of The Connecticut Law Tribune.




Norwalk Settles Mosque Lawsuit for $2 Million
Posted on 9/24/14 by Evan Seeman and Dwight Merriam          

Law Tribune Staff and Wire Reports, The Connecticut Law Tribune
September 24, 2014

A long-running dispute between the city of Norwalk and an Islamic group appears to be settled, with the city agreeing to pay $2 million to the group and help it find an alternate location for a mosque and a meeting hall.

The case was one of several pending in Connecticut that involved the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives religious organizations an array of legal rights in zoning disputes. The Al Madany Islamic Center of Norwalk sued after the Zoning Commission rejected plans for a 27,000-square-foot building. Neighbors had said it was too large a project for a residential neighborhood.

Over the years, the case proceeded slowly, marked heated debate involving city residents and officials and on-again, off-again settlement talks. Earlier this month, lawyers said a deal had been reached that would cover about $300,000 in the Islamic center's legal costs and allow a smaller than initially planned mosque to be built on the original site. Attorneys close to the case said the city felt it had no choice but to settle because municipalities that lose RLUIPA cases must pay the religious organizations' attorney fees. In this case, the plaintiff's fees had reached a reported $5.5 million.

Norwalk's zoning commission signed off on the settlement. Norwalk's Common Council delayed one vote on the plan. Then, one day before the council met on Tuesday, Sept. 23, a Norwalk attorney filed a lawsuit on behalf of six households that either abut the mosque property, or lie within 100 feet of it. Attorney Victor Cavallo told the Norwalk Hour newspaper that the city was threatened into negotiating a settlement agreement with Al Madany and that the zoning commission approval was contrary to state law and local regulations.

As a result, the council on Tuesday altered the settlement to include a $2 million payment to the Islamic group and a promise that the city would help find a different location for the mosque. Council President Douglas Hempstead said council members balanced their fiduciary responsibilities to taxpayers and guarantees of freedom of religion.




Second Circuit Revives Chabad Group’s RLUIPA Suit
Posted on 9/23/14 by Evan Seeman and Dwight Merriam          

On September 19, 2014, the Second Circuit issued its decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (2d Cir. 2014), reversing the lower court’s entry of summary judgment in favor of the Borough of Litchfield concerning some of its claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The case involves Chabad’s attempt to expand a building it purchased in the Borough’s Historic District to accommodate its religious mission.  The Borough states that Chabad’s “proposed modifications called for a 17,000-square foot addition . . . , including administrative offices, classrooms, a nearly 5,000 square-foot residence for Rabbi Eisenbach and his family, an indoor swimming pool, guest accommodations, kitchens, and a ritual bath.”  The Borough’s Historic District Commission denied Chabad’s application.

Chabad sued under RLUIPA’s substantial burden, equal-terms, and nondiscrimination provisions.  It also brought claims under the U.S. Constitution and state law.

The U.S. District Court for the District of Connecticut granted summary judgment in favor of the Borough.  It concluded that Chabad’s substantial burden claim failed because Connecticut’s statutory scheme pertaining to the modification of property in a historic district (C.G.S. § 7-147a et seq.) is a neutral law of general applicability.  It also found that Chabad’s equal-terms and nondiscrimination claims failed because Chabad had not established valid comparators.  The District Court rejected Chabad’s remaining constitutional and state law claims for many of the same reasons.

The Second Circuit reversed the District Court’s entry of summary judgment on the substantial burden and nondiscrimination claims.  It concluded that even though § 7-147a’s statutory scheme may be neutral and generally applicable, it constituted an “individualized assessment” and therefore invoked the substantial burden provision’s jurisdictional hook.  In so ruling, the Second Circuit rejected the District Court’s holding that laws of neutral and general applicability, as a matter of law, cannot impose a substantial burden on religious exercise under RLUIPA.

Although the Second Circuit remanded the case to the District Court for consideration of whether the Borough’s actions substantially burdened Chabad’s religious exercise, it provided some guidance as to the factors that should be considered:

Westchester Day School enumerates some of the factors that may be considered to determine whether a substantial burden is imposed, including whether the law is neutral and generally applicable.  In conducting the substantial burden analysis, we considered several factors.  See 504 F.3d at 352 (stating that the “arbitrary and unlawful nature” of defendant’s conduct “support[ed]” a substantial burden claim, while also looking to “other factors”); see also Fortress Bible Church, 694 F.3d at 219 (finding that arbitrary and capricious application of land use regulation “bolstered” a substantial burden claim).  In addition to the arbitrariness of a denial, our multifaceted analysis considered whether the denial was conditional; if so, whether the condition was itself a substantial burden; and whether the plaintiff had ready alternatives. . . .  see also Fortress Bible Church, 694 F.3d at 219 (considering whether rejection of land use application denied plaintiff the “ability to construct an adequate facility” for its religious exercise, or was merely a “rejection of a specific building proposal”).  Our sister circuits have contributed additional texture to this analysis.  See, e.g., Bethel World Outreach Ministries, 706 F.3d at 558 (weighing whether plaintiff had “reasonable expectation” of receiving approval to build church when it bought property and deeming it “significant that the [defendant] has completely prevented [the plaintiff] from building any church on its property”); Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (considering as a factor whether plaintiff “bought property reasonably expecting to obtain a permit,” particularly when alternative sites were available); Midrash Sephardi, Inc., 366 F.3d at 1228 (deeming it significant that the plaintiff could operate a church “only a few blocks from” its preferred location).

The Second Circuit – which had never before interpreted RLUIPA’s nondiscrimination provision –  reversed the District Court’s entry of summary judgment in favor of the Borough on this issue.  It determined that the District Court erred by bypassing circumstantial evidence that could have supported Chabad’s claim of discrimination and considering only Chabad’s cited comparators.  The Second Circuit joined its sister circuits in looking to equal protection precedent to evaluate nondiscrimination claims.  It decided that “establishing a claim under RLUIPA’s nondiscrimination provision, as with the Supreme Court’s equal protection precedent, requires evidence of ‘discriminatory intent.’”  Because the District Court did not look beyond religious comparators, the Second Circuit vacated the granting of summary judgment on this claim, and remanded for consideration of whether Chabad had established a prima facie case.

The remainder of Chabad’s claims on appeal were rejected, largely due to Chabad’s failure to adequately brief them.  The Second Circuit did, however, reverse the District Court’s dismissal of Rabbi Eisenbach’s claims for lack of standing, finding that he had met the constitutional requirements of Article III standing, since he alleged that he intended to live at the proposed facilities.




City, Islamic Group Near Settlement in Mosque Suit; Proposed deal would curtail legal fees, end religious land use case
Posted on 9/18/14 by Evan Seeman and Dwight Merriam          

Jay Stapleton, The Connecticut Law Tribune, September 5, 2014

Lawyers representing an Islamic group that wants to build a mosque in Norwalk had run up an estimated $5.5 million legal tab. That number was making attorneys representing the city a bit nervous.

And so the two sides have agreed to settle a federal lawsuit filed by the Al Madany Islamic Center, which went to court after Norwalk zoning officials rejected a proposal for a 42,000-square-foot mosque and Islamic community center in a Norwalk residential neighborhood. Under the agreement, the city will allow a smaller mosque and the Islamic group will drop its lawsuit—and collect much less in legal fees.

The lawsuit was filed under the federal Religious Land Use and Institutionalized Persons Act, which gives religious groups seeking to build houses of worship added clout in bringing appeals in zoning cases. Under RLUIPA, municipalities that lose in court can be forced to pay the plaintiffs' legal costs.

Joseph Williams, who is representing the city, said in published interviews that city officials were well aware that if the case went to trial, they could face exposure north of $10 million. "If they won, they would have sought that and they would have been awarded something. Whether you get all of it, that's in the discretion of the judge, but they were running them up [legal costs] pretty fast," said Williams, of Shipman & Goodwin, in published interviews.

The Al Madany Islamic Center brought its lawsuit in 2012 after neighbors who expressed concerns about noise and traffic urged the zoning commission to reject the proposed mosque and Islamic center. Under the settlement agreement, the original plan for the mosque and accessory building on Fillow Street is to be reduced by nearly half, to 21,800 square feet. Meanwhile, the design will expand the number of on-site parking spaces by 50 percent, to 135, and additional trees will be planted around the site as noise and visual buffers.

At the same time, Al Madany will receive $307,500 to cover legal costs—$145,000 of that from Norwalk and the remaining $162,500 from the city's insurance carrier. Two out-of-state law firms that have represented the center for the past two years had, to this point, waived most of their legal costs. But it would have been a different story if the case went to trial.

The city zoning commission approved the settlement proposal on Sept. 4. The Common Council was scheduled to take it up on Sept. 8.

This is the second proposed settlement in the case. A previous deal, which would have allowed the mosque to retain its originally proposed size and included a $100,000 payment to Al Madany, was ultimately rejected by former Norwalk Mayor Richard Moccia. In a subsequent meeting, the zoning commission voted 6-1 to approve a settlement "if an acceptable agreement could be reached."

One important step in resolving the dispute came in August, when the Stonegate Condominium Association, which had opposed the mosque's plans, issued a letter of support for the current settlement agreement.

The settlement plan calls for the city to install "traffic calming measures" as needed near the mosque. Al Madany has agreed to submit notice with the city five days before any events that may attract more than 350 people, and will arrange for shuttle buses to transport visitors to off-site parking areas during those events.

"From a legal perspective, this settlement demonstrates how the federal statute RLUIPA is a positive tool in being able to balance the interests of the religious organization with the interests of the municipality and the neighbors," said Roman Storzer, a Washington, D.C., lawyer who is nationally known for his work representing religious organizations in RLUIPA cases. Storzer was hired early in the case to represent the mosque, along with Peter Vigeland and Christopher Bouchoux, of Wilmer Hale.

Storzer said the settlement is an important one for Al Madany as well, because it resulted in the protection of the mosque's constitutional rights.

His co-counsel, Bouchoux, agreed. "I think it is a good settlement from Al Madany's perspective," said Bouchoux in an earlier interview. "The most important goal for our client was that they see their rights vindicated and that they be able to construct and use, consistent with their faith, a mosque at the property that they own. This settlement will achieve that goal."




Connecticut Home Invasion Killer/Death Row Inmate Sues Under RLUIPA for Kosher Food
Posted on 9/18/14 by Evan Seeman and Dwight Merriam          

In 2007, Steven Hayes and Joshua Komisarjevsky invaded a home in Cheshire, Connecticut, where they horrifically murdered a mother and her two children.  Hayes and Komisarjevsky were sentenced to death for their crimes.  Now, Hayes is suing the Connecticut Department of Correction and several of its officials for being refused a kosher diet.  The handwritten complaint (available here) is brought under the First Amendment (Free Exercise) and the Eighth Amendment (Cruel and Unusual Punishment) to the U.S. Constitution, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In his complaint, Hayes claims that he “signed-up” for Judaism in 2013.  Before that, he followed the “philosophy of Taoism.”  He claims “[a]s an orthodox practicing Jew I am entitled to a kosher diet that follows the Jewish dietary laws of kashrut.”  He complains that the kitchen at the correctional institution where he is being held does not have an “orthodox kosher certificate or a Jewish overseer to maintain strict kosher storage, prep and cooking standards.” 

He alleges that the Department’s refusal to provide him with a kosher diet prevents him from freely exercising his religion and violates the First Amendment and RLUIPA.  He further alleges the refusal to feed him kosher food is cruel and unusual punishment in violation of the Eighth Amendment, “since the denial of the kosher diet forces me to eat non-kosher food in order to survive.  I have also experienced secondary weight loss due to refraining from eating non-kosher products.”

Hayes seeks injunctive and declaratory relief, as well as punitive and compensatory damages in the amount of $15,000 “due to the intentional infliction of pain, suffering and resulting weight loss from the deliberate denial of a kosher diet.

For local coverage, click here.




New RLUIPA Suit Accuses Two New York Municipalities of Anti-Semitism
Posted on 9/16/14 by Evan Seeman and Dwight Merriam          

The Village of Bloomingburg, NY (Village) and the Town of Mamakating, NY (Town) are facing allegations of religious discrimination in land use regulation.  On September 8, 2014, the Bloomingburg Jewish Education Center, Sullivan Farms II, Inc., Learning Tree Properties, LLC and other interested entities and individuals (Plaintiffs) sued the Village and the Town and certain municipal officials under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the federal Fair Housing Act, the U.S. Constitution, and state law.  Plaintiffs allege that the Village and the Town have engaged in an anti-Semitic conspiracy to “stop the Jewish infiltration,” and have prevented Plaintiffs from operating a religious school and planned development unit.  The following allegations are taken from Plaintiffs’ complaint.

For more than a year, Plaintiff Learning Tree has been seeking site plan approval to open a private religious school for Hasidic Jews, to be operated by Bloomingburg Jewish Education Center.  A religious school is a permitted use in the subject zoning district.  The complaint alleges: “The religious school is urgently needed by Hasidic residents, whose religious practices otherwise oblige them to home school their children or send them to parochial schools well outside the area.”  Residents opposed the site plan application allegedly to keep Jewish families from moving into the area.  The Village’s Planning Board was forced to cancel two of its meetings (August 29, 2013 and September 26, 2013) where it was to consider the site plan application, because hordes of angry residents would not allow the meetings to proceed.  Video of the forced cancellations of those meetings can be viewed here and here.  The State Police attended the December 12, 2013 meeting to control the crowd, and the Planning Board denied the site plan based in part on its determination that no more schools were needed, even though “need” is not a legitimate consideration for a site plan application regarding a permitted use. 

The New York Supreme Court (the trial court in New York) reversed the Planning Board’s decision in May 2014 and ordered the Planning Board to reconsider the site plan application.  Rather than comply with the court’s order, the Village dissolved its Planning Board and empowered the Town’s Planning Board to administer the Village Zoning Code, an act that Plaintiffs contend was meant to delay reconsideration of the site plan.  Allegedly, the Town’s Planning Board “has deliberately embarked on a wasteful and time-consuming review of the proposed private religious school, ignoring all previous information that Learning Tree and its engineers had provided to the Village Planning Board,” and “has enlisted multiple building consultants and engineers to review the projects.”  The school is not able to open in time for the 2014-2015 school year.

Plaintiffs allege that the Village and the Town have undertaken similar efforts to prevent Sullivan Farms from completing development of the fully approved Chestnut Ridge, a 396-unit townhouse project.  Although Chestnut Ridge will be open to all persons regardless of faith, Plaintiffs allege that the Village and the Town have prevented additional units from being constructed (48 out of 396 units have been constructed) because they believe many Hasidic Jews will live there.  The Village Planning Board granted Sullivan Farms final conditional subdivision approval on June 24, 2010.  On January 24, 2014, an opposition group called Rural Community Coalition sued the Village and the Town to enjoin construction of Chestnut Ridge on the theory that the Village’s annexation of the project site from the Town seven years earlier was invalid.  Although named as defendants, the Village and Town supported the opposition group’s application for an injunction.  In February 2014, the New York State Supreme Court issued a preliminary injunction that was later vacated by the Appellate Division, Third Department on June 5, 2014.  One week after the preliminary injunction was vacated, the Village enacted a Village-wide moratorium “suspending the receipt, consideration, or issuance of all residential and commercial building permits in the Village, essentially foreclosing all construction and repair in the Village, including at the fully approved Chestnut Ridge and the private religious school.”

The moratorium – premised on a “hazardous disposal” emergency – lasts 90 days, but can be extended for up to a year.  Plaintiffs assert that the purported “health and safety” complaints include allegations that a “Torah was observed being brought into a unit,” that a private residential pool was being used as a mikvah, a Jewish ritual bath, and “that a building appears to be a gathering place.  Maybe a shul [synagogue]?”

The Village has scheduled a September 30, 2014 referendum to ask its residents whether the Village should dissolve and cede all jurisdiction to the Town.  Plaintiffs claim that the Village “hopes that by dissolving itself, it may undo prior zoning and subdivision approvals for Jewish-owned development projects, cause Plaintiffs further discouragement and delay by impairing their constitutional rights, and wholly avoid its current court-ordered obligations."  The September 30 referendum falls during the Jewish High Holy Days, in the 10-day period between Rosh Hashanah and Yom Kippur.  Accordingly to Plaintiffs, “Defendants obviously hope that the Orthodox Jews of Bloomingburg will be distracted by their religious observances and therefore will refrain from participating in the referendum vote.”

Plaintiffs assert that the Village’s and the Town’s actions in denying their operation of the school and planned development unit substantially burdens their religious exercise without a compelling government interest and treats them worse than other secular and religious uses, in violation of RLUIPA.  Plaintiffs also assert claims under RLUIPA’s “total exclusion” and “unreasonable limitations” provisions.  They bring other claims under the Fair Housing Act, the U.S. Constitution, and state law.

Plaintiffs’ 66-page complaint in The Bloomingburg Jewish Education Center v. Village of Bloomingburg, New York (S.D. NY 2014) is available here.

RLUIPA Defense is your one-stop comprehensive blog stocked with cases, trial materials, briefs and scholarly articles all about avoiding and defending against claims taken under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Dwight Merriam,
FAICP is a lawyer at the law firm of Robinson & Cole. More






Evan
Seeman

is a lawyer at the law firm of Robinson & Cole. More





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