We previously reported on the case out of Norwalk, Connecticut involving the Al Madany Islamic Center of Norwalk’s special permit application to construct a 27,000 square-foot mosque and multi-purpose hall on 1.5 acres in a residential neighborhood. You may recall that the Norwalk Zoning Commission denied the application and Al Madany sued in the United States District Court for the District of Connecticut, alleging violations of, among other things, RLUIPA, the First Amendment, and Connecticut’s Religious Freedom Act (click here to read the previous post). The United States Department of Justice also launched an investigation into the City’s denial of Al Madany’s proposal. Now, Al Madany and the City may be headed for settlement.
After the Federal District Court ordered the parties to begin settlement negotiations, the Zoning Commission, on November 29, 2012, conducted a special meeting in which it passed a motion by a vote of 6-1 “that subject to an agreement on the terms of the final settlement agreement, we consent to allow for zoning approval for the mosque and accessory use building.” Lawsuit resolved, right?
Not so fast. On December 4, 2012, the Stonegate Condominium Association, Inc., which is located within 100 feet of the site of proposed mosque and participated in the hearing before the Zoning Commission, moved to intervene to challenge Count VII of Al Madany’s complaint, an administrative appeal pursuant to Conn. Gen. Stat. § 8-8(1). In its motion, the Association claims that the notice provided by the agenda concerning the November 29 special meeting of the Zoning Commission was inadequate: “Possible action on Litigation relating to . . . Al Madany Islamic Center – 127 Fillow Street – Mosque & multi purpose hall.”
The Association’s motion states:
“There can be no real dispute that the agenda of the special meeting wholly failed to set forth any indicia that a settlement was to be discussed, much less proposed. Further, it is inarguable that the resolution adopted by the Commission ‘fails to state the terms of the settlement.’ Finally, it is equally beyond dispute that the Commission wholly failed to state ‘the reasons for such approval . . . on the record during’ a public meeting. Thus, it is clear that the actions of the defendant, City of Norwalk Zoning Commission fail[ed] to comply with either Conn. Gen. Stat. Section 8-8(n) or Conn. Practice Book Section 14-7A making the parties submission to the court a statutorily ineffective settlement. . . .”
The Association previously moved to intervene as to the same count, but the District Court, on September 18, 2012, found that it lacked subject matter jurisdiction over the administrative appeal count and denied the Association’s motion without prejudice. Thereafter, the City filed its answer and affirmative defenses, pursuant to which it raised as an affirmative defense the District Court’s lack of subject matter jurisdiction.
The Association now contends:
“The movant should be permitted to intervene in order to ensure that the question of subject matter jurisdiction is resolved. The defendants, City of Norwalk and Norwalk Zoning Commission raised the question of subject matter jurisdiction over the plaintiff’s Conn. Gen. Stat. § 8-8 appeal set forth in County VII. While it stands logic upon its head for the defendants to challenge subject matter jurisdiction on October 23, 2012, only to approve a settlement that it now appears it will ask the court to review, it does not alter the fact that subject matter jurisdiction has been challenged. The defendants have not withdrawn their affirmative defenses and the parties cannot confer subject matter jurisdiction upon the court by agreement, thus the issue must be expressly resolved by the court.”
Both Al Madany and the City have consented to the Association’s proposed intervention. The day after the Association moved to intervene, Al Madany amended its complaint. Could this indicate that a settlement may not be imminent? We will continue to monitor this case and report back on any new developments.