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.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
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.