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.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.