Original Photography by Don O’Brien (Licensed)

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.

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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 John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.

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.