A Connecticut federal court has issued an important decision in a case involving the Religious Land Use & Institutionalized Persons Act (RLUIPA) that could affect how municipalities and courts examine whether certain proposals are religious uses protected by the statute.  The 2016 decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield is the latest installment of a long-standing dispute regarding the Chabad’s attempts to renovate a former, historic residential house for religious use.  In 2014, we reported on the Second Circuit’s decision reversing the district court’s granting of summary judgment as to the Chabad’s RLUIPA substantial burden and nondiscrimination claims.  In its ruling, the Second Circuit found that even neutral laws of general applicability (in this case, Connecticut General Statute § 7-147 et seq.) could still impose a substantial burden on religious exercise, and clarified the analysis used to determine whether there has been a violation of RLUIPA’s nodiscrimination provision.

On remand from the Second Circuit, the district court has now ruled on motions for summary judgment and motions to dismiss filed by the defendants – the Borough of Litchfield, the Historic District Commission of the Borough of Litchfield (Commission), and individual Borough defendants.  Although the district court denied the motions for summary judgment, finding issues of material fact still in dispute, and largely denied the motions to dismiss, the case may affect how future courts analyze RLUIPA claims, particularly mixed (religious and secular) uses.

The Chabad purchased the former 2,656 square foot residential house located within the Litchfield Historic District and applied for a certificate of appropriateness to modify the house to accommodate its religious beliefs.  The proposal included a three-story 17,000 square foot addition for use as a sanctuary, rabbi’s study, two kosher kitchens, library, classrooms, a ritual bath, a residence for the Rabbi and his staff, visitor housing, a coffee bar, and an indoor swimming pool.  The Commission denied the application without prejudice and invited the Chabad to resubmit its application stating that it would view favorably an above-ground addition doubling the square footage of the original property and also permitting the Chabad to build as much underground as it wanted (as part of the property was underground).

While the Borough defendants concede that the sanctuary, rabbi’s study, classrooms, ritual bath, library, kosher kitchens, and coffee bar are each forms of religious exercise, they contend that the remaining uses (the pool, staff/visitor housing, and the Rabbi’s residence) are each secular uses and not protected by RLUIPA.  The court noted the complexities of the analysis:

When a religious entity seeks to construct a single building with multiple uses, the inquiry as to whether the construction of the building constitutes religious exercise becomes complicated.  This is especially so when some of the uses are arguably secular. On the one hand, as the Second Circuit noted, the construction of rooms used exclusively for secular purposes cannot constitute religious exercise… On the other hand, [w]here a building is to be used for the purpose of religious exercise, the building is not denied protection under RLUIPA merely because it includes certain facilities that are not at all times themselves devoted to, but are inextricably integrated with and reasonably necessary to facilitate, such religious exercise. (citations and quotes omitted).

The court noted that there are two possible approaches that can be used to determine whether a mixed-use proposal is religious.  First, is the “segmented” approach, which “would look at each distinct room / facility within the multi-use building and determine if it is used exclusively for secular purposes, or if it is used either exclusively for religious purposes or for both religious and secular purposes. The construction of rooms / facilities that fall into the first grouping would not be considered religious exercise, and the effect of the government’s action on the ability to build those rooms / facilities would not be analyzed under the substantial burden framework. The construction of those rooms / facilities that fall into the second grouping would still be analyzed under the substantial burden framework.”

Second is a “balancing” approach to examine “each room / facility and determine how it is used – exclusively secular, exclusively religious, or a hybrid use – and then, weighing all of the rooms / facilities, make a final determination as to whether construction of the entire building is, on balance, a form of religious exercise or not.”

The court utilized the “segmented” approach.  It observed that this approach was preferable especially because the Commission had suggested it would approve an addition double the square footage of the original house and any underground additions.  “To determine whether this condition itself substantially burdens the Chabad’s religious exercise, a factfinder needs to know whether an addition of that size, along with the original [house], would be sufficiently large to accommodate all of the Chabad’s religious exercise.”  The court found that there were genuine issues of material fact that prevented it from deciding whether each use was or was not religious in nature.

The motions for summary judgment as to the substantial burden and nondiscrimination claims were both denied because of factual issues still in dispute.  With respect to the substantial burden claim, the court examined several factors that may be instructive to courts and municipalities alike, including whether: (a) the Commission’s denial was arbitrary; (b) the denial was conditional; (c) the conditions imposed a substantial burden; (d) there were feasible alternatives; (e) the Chabad reasonably believed it would be allowed to make the modifications when it purchased the property; and (f) there was a close nexus between the Commission’s actions and the alleged burden.  Various immunity defenses were also rejected by the court.

Finally, the court considered whether the Chabad’s Rabbi, a named defendant, had a sufficient property interest to have standing to sue under RLUIPA.  The court concluded that he did as to the substantial burden claim, but did not as to the nondiscrimination claim.  It emphasized that the nondiscrimination provision prohibits the government from discriminating against “any assembly or institution,” which the Rabbis was not.

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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 Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

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.