The Danbury Zoning Board of Appeals denied a church’s application for variances to develop an 18-acre parcel with a house of worship and priest residence. Now, Danbury could join the list of Connecticut municipalities that have faced or are currently facing religious land use lawsuits brought under the Religious Land Use & Institutionalized Persons Act (New Milford, Newtown, Litchfield, Norwalk, Norwich, and Greenwich have all been sued under RLUIPA).*
Church of the Miraculous Medal, Inc. (Church) sought to vary two Danbury zoning regulations: (a) Section 4.A.4.a.(1)’s requirement for vehicular access to a collector or arterial street, and (b) Section 4.A.4.a.(6)’s requirement that a church site have public water and sewer if in a water company watershed. Long Ridge Neighborhood Preservation Association (Association) raised classic NIMBY concerns – increased traffic and degraded water quality – to oppose the Church’s proposal.
Other opponents objected to the proposal because of ties between the Church’s priest, Gerardo Zendejas, and controversial priest Richard Williamson, who was excommunicated by the Catholic Church and also convicted in a German court for denying the Holocaust. According to Wikipedia, Mr. Williams stated during a 2008 interview: “I believe that the historical evidence is strongly against, is hugely against six million Jews having been deliberately gassed in gas chambers as a deliberate policy of Adolf Hitler,” and “I think that 200,000 to 300,000 Jews perished in Nazi concentration camps, but none of them in gas chambers.” Mr. Williamson is a financial backer of the Danbury church.
In response, the Church’s attorney, Thomas Beecher, said there has been an inordinate amount of scrutiny of the Church and its leader, and reminded the ZBA of the protection afforded religious uses under RLUIPA. But the ZBA did not waiver under the threat of RLUIPA.
The ZBA’s denial comes after months of debate. Ultimately, the ZBA determined that the Church had not established unique hardship sufficient to justify the granting of the variances. The ZBA’s resolution stated in part: “The claim of hardship is self-imposed and based on the applicant’s personal preferences for how they wish to use the property.” The resolution adds that: “There is substantial evidence in the record that allowing the church on Long Ridge Road … would adversely affect the public health and safety.”
It is important to note that one of the factors used by courts to analyze a possible violation of RLUIPA’s substantial burden provision is whether a zoning agency’s decision is supported by substantial evidence in the record or if it is instead arbitrary and capricious. The Second Circuit, in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (2d Cir. 2014) (see prior post here), noted several other factors considered by the courts:
- Whether the denial is absolute or if it leaves open the possibility to develop the property for religious use in some other way
- Whether the religious applicant had a “reasonable expectation” of receiving approval
- Whether feasible alternative sites are available to the religious applicant
- Whether the proposed use is necessary for religious exercise or is a matter of personal preference
Religious discrimination, explicit or implicit, may also support a RLUIPA violation. At this time, it is not clear whether the Church will challenge the ZBA’s denial.
*Robinson & Cole LLP is involved in the Norwich lawsuit – St. Vincent de Paul Place, Norwich, Inc. v. City of Norwich.