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.

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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.