Chabad Lubavitch of Litchfield County Inc et al v. Litchfield et al
Filing
226
ORDER granting in part and denying in part 88 Motion to Dismiss; granting in part and denying in part 141 Motion to Dismiss; denying 185 Motion for Summary Judgment; denying 187 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 1/27/2016. (Anastasio, F.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHABAD LUBAVITCH OF
LITCHFIELD COUNTY, INC., et al.,
Plaintiffs,
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v.
BOROUGH OF LITCHFIELD,
CONNECTICUT, et al.,
Defendants.
CIVIL ACTION NO.
3:09-CV-1419 (JCH)
JANUARY 27, 2016
RULING RE: MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 185 & 187) &
MOTIONS TO DISMISS RABBI EISENBACH AS PLAINTIFF (DOC. NOS. 88 & 141)
I.
INTRODUCTION
Plaintiffs the Chabad Lubavitch of Litchfield County, Inc. (“the Chabad”) and
Rabbi Joseph Eisenbach (“Rabbi Eisenbach”) filed a Third Amended Complaint (Doc.
No. 54) (“Third Am. Compl.”) against the Borough of Litchfield, Connecticut (“the
Borough”) and the Historic District Commission of the Borough (“the HDC”) (collectively,
“Borough defendants”), and Wendy Kuhne, Glenn Hillman, and Kathleen Crawford,
members of the HDC (collectively, “individual defendants”). 1 The Third Amended
Complaint alleged twelve causes of action, each of which named the Borough
defendants and the individual defendants.
The Borough defendants filed a Motion for Summary Judgment (Doc. No. 140)
on all counts. The individual defendants also filed a separate Motion for Summary
Judgment (Doc. No. 138) on all counts. The plaintiffs, meanwhile, filed a Motion for
1
All claims against Wendy Kuhne have been dismissed; she is no longer a party to this case.
See Chabad Lubavitch of Litchfield Cty. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 187 n. 1 (2d
Cir. 2014) (“Chabad”).
1
Partial Summary Judgment (Doc. No. 137) as to Count Eight. The individual
defendants had previously filed a Motion to Dismiss (Doc. No. 88) seeking to remove
Rabbi Eisenbach as a plaintiff for lack of standing. The Borough defendants later filed
their own Motion to Dismiss (Doc. No. 141), in which they joined the individual
defendants’ Motion.
The court granted the Motions to Dismiss Rabbi Eisenbach. See Ruling (Doc.
No. 151). The court denied the plaintiffs’ Motion for Partial Summary Judgment and
granted both the Borough defendants’ and the individual defendants’ Motions for
Summary Judgment. See Ruling (Doc. No. 169).
On appeal, the United States Court of Appeals for the Second Circuit vacated
this court’s grant of summary judgment for the defendants on Counts Six and Seven,
and remanded these claims for further proceedings in accordance with the Court of
Appeals’ decision. Order at 2 (Doc. No. 179). The Court of Appeals also vacated the
court’s dismissal of Rabbi Eisenbach as a plaintiff for lack of standing and remanded for
determination of whether Rabbi Eisenbach has stated a claim upon which relief can be
granted. Id. The Court of Appeals affirmed the court’s grant of summary judgment for
the defendants on all the other counts. Id. Lastly, the Court of Appeals directed the
court to address, in the first instance, the individual defendants’ arguments that they are
entitled either to absolute immunity or qualified immunity, and to consider whether
Crawford “is properly subject to this suit in the absence of evidence that she voted on
the application.” Id. at 40.
Both the remaining individual defendants and the Borough defendants have filed
Second Motions for Summary Judgment (Doc. Nos. 185 and 187, respectively). Neither
2
set of defendants has filed a second Motion to Dismiss as to Rabbi Eisenbach, instead
opting to rest on their original Motions.
II.
FACTUAL BACKGROUND 2
The Borough of Litchfield is an independent municipal corporation, whose
boundaries are wholly within the Town of Litchfield. See Borough Defendants’ Local
Rule 56(a)(1) Statement ¶ 15 (Doc. No. 187-1) (“Borough Defs.’ L.R. 56(a)(1) Stmt.”).
The Borough is governed by a municipal charter adopted in 1989, pursuant to the
Connecticut General Statutes. Id. In 1989, pursuant to the provisions of Chapter 97a of
title 7 of the Connecticut General Statutes, C.G.S.A. §§ 7-147a et seq., the Borough
established the HDC to govern aspects of the construction and modification of buildings
within the Litchfield Historic District. Id. ¶ 16; see also C.G.S.A. § 7-147a. Section 7147c(e) of title 7 of the Connecticut General Statutes permits the HDC to adopt
regulations which set forth the criteria by which it would judge applications. Id. ¶ 17;
see also C.G.S.A. § 7-147c(e). However, in deciding whether to grant a certificate of
appropriateness, the HDC is barred from considering a building’s “interior arrangement
or use.” C.G.S.A. § 7-147f(b).
Rabbi Eisenbach is an ordained Hasidic Rabbi and is the President of the
plaintiff, the Chabad Lubavitch of Litchfield County, Inc. Borough Defs.’ L.R. 56(a)(1)
Stmt. ¶ 1. Currently, the Chabad leases a space where it holds its regular services and
various meetings. Id. ¶ 3; see also Third Am. Compl. ¶¶ 24-25. The Chabad alleges
2
In connection with a motion for summary judgment, the court relies on the undisputed facts or, if
a fact is disputed, the court views the evidence in the light most favorable to the party opposing summary
judgment. Except where noted, the facts are not in dispute.
3
that its current space is inadequate to carry out its religious practices. Borough Defs.’
L.R. 56(a)(1) Stmt. ¶ 4.
The Chabad purchased property at 85 West Street, Litchfield, Connecticut. Id. ¶
7. The structure located on the property was built in the late 1870s, as a two story,
stick-style Victorian residential house, consisting of approximately 2,656 square feet,
plus a basement. Id. ¶ 30. 3 The parties clarified at the most recent oral argument that
the 2,656 square feet is the total square footage of the house, exclusive of the
basement and attic – which means that each of the two floors is roughly 1,328 square
feet large. The house is commonly known as the “Deming House.” Id. ¶ 32. Although
originally residential, the Deming House has since been used for commercial purposes,
most recently housing a retail store. Id. ¶ 31.
After it purchased the property, the Chabad applied for a Certificate of
Appropriateness in order to gain permission to modify the property to accommodate its
religious needs. Plaintiffs’ Local Rule 56(a)(2) Statement ¶ 8 (Doc. No. 205-1) (“Pls.’
L.R. 56(a)(2) Stmt. (Disp.)”); 4 see Borough Defs.’ L.R. 56(a)(1) Stmt. ¶ 34. The Chabad
submitted plans to add a three-story, 17,000 square foot addition, which would include a
sanctuary, two kosher kitchens, a ritual bath, a residence for Rabbi Eisenbach and his
3
The exact square footage of the Deming House is unclear. At one point in the HDC Decision,
the Deming House is described as 2,656 square feet large. Borough Defendants’ Memorandum in
Support of Second Motion for Summary Judgment Ex. K at 10 (Doc. No. 187-16) (“HDC Decision”). Later
in the HDC Decision, it is described as 2,679 square feet large. Id. at 14. Ultimately, this difference
between 2,656 and 2,679 is immaterial. The court will use the lower figure for purposes of this Ruling.
4
In response to each defendant’s Local Rule 56(a)(1) Statement, the Chabad filed a Local Rule
56(a)(2) Statement. The Local Rule 56(a)(2) Statement is comprised of two sections. The first section
mirrors the defendant’s Local Rule 56(a)(1) Statement and either admits or denies the statements made
by the defendant. The second section contains the Chabad’s list of disputed facts. Because the Chabad
uses the same numbers in each section, the court will refer to the first section of the Chabad’s Local Rule
56(a)(2) Statement as “Pls.’ L.R. 56(a)(2) Stmt.” The court will refer to the second section of the
Chabad’s Local Rule 56(a)(2) Statement as “Pls.’ L.R. 56(a)(2) Stmt. (Disp.)”.
4
family, staff / visitor housing, a coffee bar, and an indoor swimming pool. Borough
Defs.’ L.R. 56(a)(1) Stmt. ¶ 33. 5 The addition would also include classrooms, see
Declaration of Rabbi Eisenbach ¶ 9 (Doc. No. 205 Ex. B) (“Rabbi Eisenbach Decl.”),
and a rabbi’s study adjacent to the sanctuary, see Second Motion for Summary
Judgment by Borough of Litchfield, Connecticut and Historic District Commission of the
Borough of Litchfield, App. U at 4 (Doc. No. 187-26) (“Architectural Renderings”). Aside
from the addition, the Chabad applied to add a clock tower with a Star of David finial to
the roof, see Borough Defs.’ L.R. 56(a)(1) Stmt. ¶ 33, 6 and to replace the single door at
the front of the house with a double door, see id. ¶ 52. The Chabad also sought
permission to make a number of other stylistic modifications. Id. ¶ 53.
The plot of land on which the Deming House is located slopes downward, as one
moves from the street front side of the plot to the back. See Architectural Renderings at
9. The various uses in the proposed addition would be located on five different levels,
as follows: the pool and the ritual bath would be situated together on the “basement
level”; the classrooms and library would be situated on the “classroom level”; the
sanctuary, coffee bar, rabbi’s study, and one of the kosher kitchens would be situated
together on the “sanctuary level”; 7 the rabbi’s residence, including the second kosher
5
The Chabad denies this paragraph as a whole; however, the evidence it cites in support of its
denial does not contest the square footage of the proposal or the various uses of the proposed structure.
Consequently, the court deems this portion of the asserted fact to be admitted. See D. Conn. L. Civ. R.
56(a)(3).
6
Again, the Chabad denies this paragraph as a whole, but the evidence it cites in support of its
denial does not contest that the Chabad sought to add a clock tower with a Star of David finial.
7
The “sanctuary level” is at level with the first floor of the original Deming House.
5
kitchen, would be situated together on the “residential level”; 8 and, the staff / visitor
housing would be situated on the “staff residential level.” 9 See id. at 2-6. As the parties
clarified at the most recent oral argument, the sanctuary, residential, and staff
residential levels would all be fully above-ground. The parties also clarified that the
basement level would be entirely underground and not visible from the outside. Lastly,
the parties clarified that, due to the fact that the plot slopes downward, part of the
classroom level would be above-ground and part underground. Accordingly, part of the
exterior wall for the classroom level would be visible from the outside. See id.
The HDC denied the Chabad’s application without prejudice, and it invited the
Chabad to resubmit its application with a proposal that provided for an above-ground
addition that doubled the square footage of the original property, and which addition
would be narrower than the original building and have a lower roofline. See Borough
Defs.’ L.R. 56(a)(1) Stmt. ¶ 48; HDC Decision at 14. At oral argument, the defendants
clarified that the HDC Decision stated it would allow the Chabad to build an addition
whose above-ground square footage was equal to the above-ground square footage of
the current Deming House. The defendants also clarified that the Chabad would be free
to build as much underground as it desired. The HDC also approved of all of the
Chabad’s stylistic modifications except for the addition of the clock tower and the
substitution of the double door for the single door. 10 Id. ¶ 53. Hillman voted on the
8
The “residential level” is at level with the second floor of the original Deming House.
9
The “staff residential level” is at level with the attic of the original Deming House.
10
Neither party addressed in its briefing whether the HDC’s denial of the Chabad’s proposal to
add the clock tower and to replace the single door with a double door substantially burdened the
Chabad’s religious exercise. At the most recent oral argument, the Chabad conceded that it does not
6
Chabad’s application. 11 Id. ¶ 49. There is disagreement as to whether Crawford voted
on the application. See id. ¶ 12; Pls.’ L.R. 56(a)(2) Stmt. (Disp.) ¶ 16 (citing Plaintiffs’
Memorandum of Law in Response to Defendants’ Borough of Litchfield, Connecticut,
and the HDC Motion for Summary Judgment (“Pls.’ Mem. in Supp.”) (Doc. No. 205) Ex.
A-4 (Doc. No. 205-6) (“Crawford Dep.”).
III.
LEGAL STANDARD
A. Motion for Summary Judgment
On a motion for summary judgment, the burden is on the moving party to
establish that there are no genuine issues of material fact in dispute and that it is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once
the moving party has met its burden, in order to defeat the motion, the nonmoving party
must “set forth specific facts showing that there is a genuine issue for trial,” Anderson,
477 U.S. at 256, and present such evidence as would allow a jury to find in his favor,
see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
In assessing the record to address questions of fact, the trial court must resolve
all ambiguities and draw all inferences in favor of the party against whom summary
judgment is sought. Graham, 230 F.3d at 38. Summary judgment “is properly granted
only when no rational finder of fact could find in favor of the non-moving party.” Carlton
v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). “When reasonable persons,
believe that the construction of the clock tower and double door constitutes religious exercise, and it is not
challenging the HDC’s denial of these portions of its application.
11
The Chabad denies the portion of this paragraph that asserts that Commissioner Montebello
voted. See Pls.’ L.R. 56(a)(2) Stmt. ¶ 49. It does not deny that Hillman voted. See Pls.’ L.R. 56(a)(2)
Stmt. (Disp.) ¶ 9.
7
applying the proper legal standards, could differ in their responses to the question”
raised, on the basis of the evidence presented, the question must be left to the finder of
fact. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000).
B. Motion to Dismiss
On a motion to dismiss, all factual allegations in the complaint must be accepted
as true, and the court must draw all reasonable inferences in the plaintiff’s favor. Harris
v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). “[A] motion to dismiss does not involve
consideration of whether a plaintiff will ultimately prevail on the merits, but instead solely
whether the claimant is entitled to offer evidence in support of his claims.” Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 65 (2d Cir. 2010) (citation
and quotation marks omitted).
Pursuant to the Federal Rules, a defendant may move to dismiss a complaint if it
“fails to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In its
review of a motion to dismiss, the court may consider “only the facts alleged in the
pleadings, documents attached as exhibits or incorporated by reference in the pleadings
and matters of which judicial notice may be taken.” Samuels v. Air Trans. Local 504,
992 F.2d 12, 15 (2d Cir. 1993). To survive a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
8
sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556).
IV.
DISCUSSION
A. Motion for Summary Judgment
The Borough defendants and the individual defendants seek summary judgment
on the only two remaining claims against them, brought under the Religious Land Use
and Institutionalized Persons Act’s (“RLUIPA”) substantial burden and nondiscrimination
provisions. Crawford also argues that she is entitled to summary judgment on the
ground that, because she never voted on the Chabad’s application, she never acted as
a government official and, accordingly, is not subject to RLUIPA. In addition to arguing
that summary judgment on these claims is warranted on the merits, the individual
defendants also argue that they are entitled to summary judgment based on either
absolute or qualified immunity.
1. Substantial Burden Claim
RLUIPA’s substantial burden provision applies in three situations, where,
(A) the substantial burden is imposed in a program or activity that
receives Federal financial assistance, even if the burden results
from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial
burden would affect, commerce with foreign nations, among the
several States, or with Indian tribes, even if the burden results
from a rule of general applicability; or,
(C) the substantial burden is imposed in the implementation of a
land use regulation or system of land use regulations, under
which a government makes, or has in place formal or informal
procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the
property involved.
9
42 U.S.C. § 2000cc(a)(2). The Court of Appeals concluded that, “the HDC’s denial of
the Chabad’s application resulted from an ‘individual assessment,’ triggering RLUIPA’s
substantial burden provision,” under section 2000cc(a)(2)(c). Chabad, 768 F.3d at 194.
Accordingly, the inquiry presently before the court is whether the HDC’s denial violated
the substantial burden provision, which states that:
No government shall impose or implement a land use regulation in
a manner that imposes a substantial burden on the religious
exercise of a person, including a religious assembly or institution,
unless the government demonstrates that imposition of the burden
on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc(a)(1).
Notably, the substantial burden provision only bars the government from
substantially burdening “religious exercise.” Accordingly, before the court can
determine whether the HDC’s actions substantially burdened the Chabad’s religious
exercise, the court must determine whether or not the curtailed behavior constitutes
“religious exercise.” See, e.g., Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d
338 (2d Cir. 2007) (“Westchester Day III”) (bifurcating “religious exercise” and
“substantial burden” analyses). As already mentioned, see supra, at 6 n. 10, the
Chabad is only challenging the HDC’s denial of its application to build the proposed
addition. Accordingly, the court must first analyze whether construction of the proposed
addition constitutes religious exercise and then, whether the HDC’s denial substantially
burdened that exercise.
10
i. Religious Exercise
RLUIPA defines “religious exercise” as covering “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §
2000cc-5(7)(A). Further, the “use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be religious exercise of the person
or entity that uses or intends to use the property for that purpose.” 42 U.S.C. § 2000cc5(7)(B). The Court of Appeals for the Second Circuit has also stated that, in
determining whether a use constitutes “religious exercise,” district courts should ask
“whether the proposed facilities were for a religious purpose rather than simply whether
the [facilities] w[ere] religiously-affiliated.” Westchester Day III, 504 F.3d at 348.
While genuine issues of material fact may exist as to how a certain facility will be
used, the ultimate determination as to whether a facility – assuming how it will be used
is agreed upon or is first determined by a factfinder – constitutes “religious exercise” is a
question of law for the court to decide. See, e.g., Bikur Cholim, Inc. v. Vill. of Suffern,
664 F.Supp.2d 267, 289 (S.D.N.Y. 2009) (at summary judgment stage, court made
ultimate determination as to whether rabbi’s operation of a “Shabbos House” constituted
“religious exercise”); California-Nevada Annual Conference of the Methodist Church v.
City and Cty. of San Francisco, 74 F.Supp.3d 1144, 1154 (N.D.Ca. 2014) (at motion to
dismiss stage, court made ultimate determination as to whether Conference’s “ability to
sell the property for use on the commercial rental market” constituted “religious
exercise”).
11
a. The Addition
The Chabad proposed to build a multi-use addition to the Deming House. The
various uses contemplated by the addition included, inter alia: a sanctuary; a rabbi’s
study, a ritual bath; two kosher kitchens; a religious school; a residence for Rabbi
Eisenbach and his family; staff / visitor housing; a library; a coffee bar; and, a pool. See
Architectural Renderings at 2-6; Borough Defs.’ L.R. 56(a)(1) Stmt. ¶ 33. 12 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.” Westchester Day Sch. v. Vill. of
Mamaroneck, 417 F.Supp.2d 477, 544 (S.D.N.Y. 2006) (“Westchester Day II”) (referring
to Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183 (2d. Cir. 2004)
(“Westchester Day I”)). 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.’ ” Westchester Day II, 417 F.Supp.2d at 544. This framework can
be applied neatly when one of two circumstances exist: (1) a single-use structure or
room is to be used exclusively for either religious or secular purposes, or (2) every room
/ facility in a multi-use building will be used, at least in part, for religious purposes, or is
12
The Chabad denies that the proposed addition includes a coffee bar, instead calling it “an area
for self-service coffee for those visiting the Library.” Rabbi Eisenbach Decl. ¶ 9. However, the plans
drawn up by the Chabad’s own architect, Michael Boe, identify this area as a “coffee bar.” See
Architectural Renderings at 4.
12
inextricably integrated with and reasonably necessary to facilitate religious exercise,
even if a given room / facility inherently has more of a secular, than religious, nature.
For example, in Westchester Day III, which represents the final word in this line of
cases, the Court of Appeals addressed both scenarios. Addressing the former situation,
the Court stated: “if a religious school wishes to build a gymnasium to be used
exclusively for sporting activities that kind of expansion would not constitute religious
exercise.” Westchester Day III, 504 F.3d at 347. And, addressing the latter situation,
the court approved of the district court’s conclusion that construction of the building in
question constituted religious exercise because the court “made careful factual findings
that each room the school planned to build would be used at least in part for religious
education and practice.” Id. at 348.
However, the Westchester Day cases do not instruct a court how to proceed
when a multi-use building that includes some rooms that will be used for religious
purposes also includes some rooms / facilities that are used exclusively for secular
purposes. The court can conceive of two possible approaches. A “segmented”
approach 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.
13
Alternatively, a “balancing” approach would look at 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. In
Fortress Bible Church v. Feiner, 734 F.Supp.2d 409 (S.D.N.Y. 2010) (“Fortress Bible
Church I”), the court seemed to adopt the latter approach, stating, “[e]ven if certain of
the school’s activities are considered to be secular, as Defendants argue they are, given
the substantial evidence regarding the intended religious uses for the facility, this Court
does not believe that such limited secular activities would be sufficient to bar a finding of
religious exercise.” Id. at 501. However, the Fortress Bible Church I court had earlier
determined that even the secular school rooms / facilities, such as the gymnasium,
would be used at times for religious purposes, see id. at 500, thereby placing in doubt
whether Fortress Bible Church I dealt with the hypothetical situation described above –
where a multi-use building contains some uses that are purely secular.
The “segmented” approach appears sounder to the court, most compellingly
because it best allows the court to effectuate legislative intent. “As a legislative
accommodation of religion, RLUIPA occupies a treacherous narrow zone between the
Free Exercise Clause, which seeks to assure that government does not interfere with
the exercise of religion, and the Establishment Clause, which prohibits the government
from becoming entwined with religion in a manner that would express preference for
one religion over another, or religion over irreligion.” Westchester Day I, 386 F.3d at
189. In light of the “treacherous narrow zone” that RLUIPA occupies, the “segmented”
approach allows the court to afford religious organizations all the benefits conferred
14
upon them by RLUIPA, but no more, lest the court incidentally “preference . . . religion
over irreligion.” Id. The “balancing” approach, on the other hand, risks affording
religious organizations special accommodations for secular activities that would not be
afforded to secular organizations – which could occur if a structure were used
predominantly for religious purposes but also included some rooms / facilities that were
exclusively for secular use.
The “segmented” approach is sounder also because it allows the court to
comport more closely with the instructions given to it by Court of Appeals on remand.
Among the numerous factors the Court of Appeals instructed the court to consider when
determining whether the HDC’s denial substantially burdened the Chabad’s religious
exercise was whether the denial was conditional and, if so, whether the conditions
themselves substantially burdened the Chabad’s religious exercise. See infra, §§
IV.A.1.ii.b, IV.A.1.ii.c. The facts of this case illustrate why the “segmented” approach is
preferable in terms of following this directive. The HDC’s denial was conditional: it said
it would allow the Chabad to build an addition that would double the square footage of
the Deming House. 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 Deming House, would be sufficiently large to accommodate all of
the Chabad’s religious exercise. The amount of space the Chabad needs for religious
exercise may differ substantially if the court views the entire addition as religious
exercise on the basis that the predominant uses for the building overall constitute
religious exercise (this would be an application of the “balancing” approach), than if the
court views each use in isolation and asks only whether those facilities used for
15
religious purposes could be fit into the addition that the HDC says it will allow (this
would be an application of the “segmented” approach). Accordingly, the court can
better assess whether the HDC’s condition itself substantially burdened the Chabad’s
religious exercise by applying the “segmented” approach.
The court will now turn to the various uses in the Chabad’s proposed addition
and analyze whether there exists a genuine issue of material fact with regard to whether
each use constitutes religious exercise, and, to the degree that no genuine issue of
material fact exists for a given use, whether such use constitutes religious exercise as a
matter of law.
At the most recent oral argument, the defendants conceded that construction of
the sanctuary, rabbi’s study, classrooms, ritual bath, library, and coffee bar constitutes
religious exercise. 13 The defendants also conceded that construction of the kosher
kitchens constitutes religious exercise, although in their briefing they argue that the
second kosher kitchen is likely only necessitated by the inclusion of Rabbi Eisenbach’s
residence, the construction of which the defendants claim is not religious exercise.
13
Other courts have held that some of these uses constitute religious exercise. For example, in
Fortress Bible Church v. Feiner, 694 F.3d 208 (2d. Cir. 2012) (“Fortress Bible Church II”), the court
applied the substantial burden analysis to the plaintiff’s proposal to build a church, thereby implying that
construction of the church constitutes religious exercise. With regard to classrooms, the Westchester Day
III court noted that construction of classrooms that “would be used at least in part for religious education
and practice” also constitutes “religious exercise.” Id. at 348. To that end, the Chabad claims, and the
defendants do not contest, that the classrooms would be part of a Jewish preschool. See Rabbi
Eisenbach Decl. ¶ 9. Some of the other uses, such as the library, rabbi’s study, and ritual bath, clearly
constitute religious exercise, insofar as they serve a “religious purpose,” and the defendants do not
appear to argue to the contrary. For example, the library, and presumably also the rabbi’s study, would
serve the “religious purpose” of allowing the Chabad to satisfy its “religious mandates for the inclusion of
at least the minimal religious texts which would serve to educate and instruct our participants and family.”
Id. Likewise, the ritual bath allows the Chabad “to perform the purification ritual required by our religion.”
Id. ¶ 11. With regard to the coffee bar, although it is less clear based on the record how construction or
use of this space constitutes religious exercise, the defendants’ concession that its construction
constitutes religious exercise renders further analysis by the court on this point unnecessary.
16
On the other hand, the defendants argue that the pool, staff / visitor housing, and
residence for Rabbi Eisenbach are all “secular uses.” Borough Defendants’
Memorandum in Support of Second Motion for Summary Judgment at 34 (Doc. No.
187-2) (“Borough Defs.’ Mem. in Supp.”). Construction of an intuitively secular facility –
such as a pool, staff / visitor housing, and a residence – can constitute religious
exercise if the facility will be used, at least in part, for religious exercise. See Fortress
Bible Church I, 734 F.Supp.2d at 500 (concluding that construction of certain secular
facilities such as a gymnasium and mathematics, history, science, and art classrooms
constitute religious exercise because “the Bible is integrated into all secular subjects
taught at the school” and because “the proposed gymnasium will be used, in addition to
teaching physical education, among other purposes, to host youth meetings and
fellowships”); see also Westchester Day II, 417 F.Supp.2d at 494-498 (finding that
construction project which included classrooms for intuitively secular subjects
constituted religious exercise because the school’s “existing facilities, in whole and in all
of their constituent parts, are used for religious education and practice—i.e., devoted to
religious purposes. While it is possible that a classroom may be used for a general
studies course not infused with religion at a particular time, the uses to which a
particular classroom are put will change over time and at some point will be devoted to
religious purposes”); see also Westchester Day III, 504 F.3d at 348 (“On remand, the
district court . . . made careful factual findings that each room the school planned to
build would be used at least in part for religious education and practice . . .”). 14
14
It bears noting that the district court, in Westchester Day II, was the finder of fact at a bench
trial.
17
With regard to the pool, the Chabad offers evidence that, the “pool area and
lower educational areas are dedicated to various religious uses for [the Chabad’s]
participants including [the Chabad’s] Gan Israel program for children.” Rabbi Eisenbach
Decl. ¶ 9. Although the Chabad has not explicitly stated how the pool will be used for
religious exercise, there is evidence in Rabbi Eisenbach’s sworn declaration that the
pool will be used for religious purposes. Thus, based on the Fortress Bible Church and
Westchester Day cases, there is, at the very least, a genuine issue of material fact with
regard to whether the pool will be used for religious purposes and, thus, whether its
construction constitutes religious exercise.
With regard to Rabbi Eisenbach’s residence, the Chabad has offered evidence
that “[i]t is the custom and practice of [the Chabad’s] faith to dedicate the living areas of
the Rectory/Parsonage/Residence to serve the religious needs of [the Chabad’s]
participants and the Rabbi’s family.” Pls.’ Mem. in Supp. at 10; see also Rabbi
Eisenbach Decl. ¶ 3 (“every aspect of our lives – including our
Rectory/Parsonage/Residence – is dedicated to serve a religious purpose”).
Specifically, “even the non-consecrated activities such as eating, sleeping, playing, etc.
must also be infused with holiness, even beyond the normative religious rituals that are
mandated.” Rabbi Eisenbach Decl. ¶ 7.
This argument is undercut somewhat by the fact that the Chabad further argued
that the spiritual leader of the Chabad “instructed all his followers to designate their
private dwellings as Chabad Houses in the symbolic sense of: (i) identifying with values
and goals of the Chabad Movement in terms of personal religious lifestyle alongside
devotion to other people (inspiring all who dwell or visit there) and (ii) as an educational
18
tool for the resident children to realize their responsibilities toward everyone else.” Id. ¶
5. Reflecting that attitude, “there is a popular Lubavitch school song which says . . .
‘Every home should be a Chabad House.’ ” The court struggled with the concept that
any adherent of the Chabad could transform his home into a place of “religious
exercise,” and in so doing envelop himself within RLUIPA’s protective umbrella, simply
by asserting that the Chabad’s leader instructed all his followers to make their homes
religious places.
At oral argument, however, the Chabad clarified that there exists a difference
between a “Chabad House” and a Chabad member’s home. A “Chabad House,” as
referred to in the portion of the Chabad’s Memorandum quoted above, is a term of art
referring to the structure that a Chabad rabbi establishes for his community. Further,
the Chabad argued that the “Chabad House” occupies a special place in the religion,
and that how a Chabad rabbi raises his children within the residential portion of the
Chabad House serves as instructive to the entire community. There is at least a
genuine issue of material fact that Rabbi Eisenbach’s residence, because it is the
residence of the community’s leader, serves the religious purpose of providing the
community with an exemplar of how to raise a family in a household that incorporates
the Chabad’s tenets, and of how “every home” can become a “Chabad House.”
The defendants, meanwhile, do not provide any support for their assertion that
the rabbi’s residence is secular, nor do they dispute Rabbi Eisenbach’s assertion that all
aspects of his domestic life are infused with religious exercise or that his home serves
as a religiously-mandated exemplar to the community. See Borough Defs.’ Mem. in
19
Supp. at 34. 15 Instead, they argue that Rabbi Eisenbach’s Declaration is “replete with
vague and conclusory statements.” Defendants Borough of Litchfield, Connecticut and
HDC’s Reply Brief in Support of Motion for Summary Judgment at 2 (Doc. No. 210).
Although Rabbi Eisenbach’s Declaration does not provide voluminous evidence
demonstrating how his residence will be used for religious exercise, neither is it wholly
conclusory. At the very least, there exists a genuine issue of material fact with regard to
whether the residence will be used for religious exercise.
Turning, lastly, to the staff / visitor housing, there is little evidence in the record to
suggest how it will be used. In his deposition, the Chabad’s architect stated that he was
under the impression that it would be used to house “visiting rabbis and counselors.” Id.
Ex A-12 (Doc. No. 205-12) (“Boe Dep.”). The defendants, on the other hand, have not
offered any evidence that supports the conclusion that the staff / visitor housing will not
be used for religious exercise. Accordingly, at the very least, there exists a genuine
issue of material fact as to whether the staff / visitor housing will be used for religious
exercise.
Construction of the proposed facilities is in large measure religious exercise and,
as to the remaining use / facilities, there exist genuine issues of material fact regarding
their status as places of religious exercise.
15
While it is true that not every Chabad House includes a residence for the rabbi, that fact does
not require the conclusion that a rabbi’s residence will not serve a religious purpose. For example, while
surely not every house of worship in the country contains classrooms for a religious school, it is
indisputable that the construction, in a house of worship, of classrooms that are used for a religious
school constitutes religious exercise.
20
ii. Substantial Burden
Turning to the second inquiry under the substantial burden claim, RLUIPA does
not define “substantial burden.” In the past, the Second Circuit has stated that, in the
context of the government’s denial of a religious institution’s building application, “[a]
substantial burden is one that ‘directly coerces the religious institution to change its
behavior.’ ” Fortress Bible Church II, 694 F.3d at 218-19 (quoting Westchester Day III,
504 F.3d at 349). To assist the court in determining whether the HDC’s denial of the
Chabad’s Certificate of Appropriateness application imposed a substantial burden on
the Chabad’s religious exercise, the Court of Appeals directed the court to consider a
number of factors. These factors include:
(1) “the arbitrariness of the denial”;
(2) “whether the denial was conditional”;
(3) whether, if the denial was conditional, “the conditions attendant to the HDC’s
denial of the Chabad’s application themselves imposed a substantial burden
on the Chabad’s religious exercise”;
(4) “whether feasible alternatives existed for the Chabad to exercise its faith”;
(5) “whether the Chabad reasonably believed it would be permitted to undertake
its proposed modifications when it purchased the property at 85 West Street”;
and,
(6) “whether the proposed modifications shared a close nexus with and would be
consistent with accommodating the Chabad’s religious exercise.”
Chabad, 768 F.3d at 195-96. The Court of Appeals did not suggest the relative
importance of these factors. Accordingly, the court’s approach will be to examine each
factor as it pertains to the HDC’s denial of the addition.
a. Arbitrariness of the denial
The Court of Appeals cited to Westchester Day III and Fortress Bible Church II in
connection to the “arbitrariness of the denial” factor. See id. at 195. In its own
discussion of this factor, the Westchester Day III court looked for guidance to Saints
21
Constantine and Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895 (7th
Cir. 2005) and Guru Nanak Sikh Soc’y v. Cty. of Sutter, 456 F.3d 978 (9th Cir. 2006),
both of which decisions the Court of Appeals cited approvingly in other portions of its
Chabad decision. Accordingly, all of these cases will provide guidance to this court in
its application of the arbitrariness factor.
In Westchester Day III, the Court of Appeals concluded that the district court’s
finding in Westchester Day II – that the zoning board’s denial was arbitrary and
capricious – was supported by the record. Westchester Day III, 504 F.3d at 351. The
district court’s conclusion was based on the fact that the zoning board’s findings were
not supported by substantial evidence and because the purported justifications for
denial, upon which the zoning board relied, were not sufficiently related to public health,
safety, or welfare. See id.
In Fortress Bible Church II, the Court of Appeals concluded that the town that
denied the church’s building application had acted in an “arbitrary, capricious, and
discriminatory” manner, and that its actions were “taken in bad faith.” Fortress Bible
Church II, 694 F.3d at 219. In support of this finding, the Court of Appeals found that,
“[t]he Town attempted to extort from the Church a payment in lieu of taxes, it ignored
and then replaced its Planning Commissioner when he advocated on the Church’s
behalf, and Town staff intentionally destroyed relevant evidence.” Id.
In Saints Constantine and Helen, the Seventh Circuit stated that, “[i]f a land-use
decision . . . imposes a substantial burden on religious exercise . . . and the decision
maker cannot justify it, the inference arises that hostility to religion, or more likely to a
particular sect, influenced the decision.” Saints Constantine and Helen, 396 F.3d at
22
900. Earlier in the decision, the court also noted that the “repeated legal errors by the
City’s officials casts doubt on their good faith.” Id. at 899. The Second Circuit couched
these types of acts within the larger framework of “arbitrary application of laws to
religious organizations.” Westchester Day III, 504 F.3d at 350.
In Guru Nanak Sikh, the Ninth Circuit held that the county had both
“inconsistently applied” certain land-use concerns to the religious organization’s
detriment and disregarded, “without explanation,” relevant findings that favored the
organization. Guru Nanak Sikh, 456 F.3d at 990, 991. The Second Circuit regarded
this type of behavior as an example of “arbitrary, capricious, or unlawful” government
action. Westchester Day III, 504 F.3d at 351.
The defendants assert that the Chabad has not alleged any “specific arbitrary,
capricious or illegal application of the laws and regulations applied by the Commission
in rendering its decision.” Borough Defs.’ Mem. in Supp. at 23. Rather, they argue that,
“the HDC extensively explained the basis and rationale for its decision, as related to the
Secretary [of Interior’s] Standards [for Rehabilitating Historic Buildings] and C.G.S. §
147f . . . ” Id. at 24. The Chabad, on the other hand, claims that the HDC’s decision
was based on illegal considerations such as “interior use or square footage” and “below
grade or other unseen areas.” Pls.’ Mem. in Supp. at 38, 39. Further, the Chabad
argues that the HDC Decision arbitrarily attempts to sustain the residential character of
the Deming House, despite the fact that “the historic residential character of the
property was already eviscerated when the HDC approved the conversion of the
Property from a residential to a commercial building.” Id. at 40. The court will address
these arguments in turn.
23
The Chabad argues that the HDC’s decision was based on an illegal
consideration of “interior use or square footage.” Section 7-147f of the Connecticut
General Statutes, which articulates the factors the HDC may consider in deciding on a
certificate of appropriateness, bars the HDC from considering “interior arrangement or
use.” C.G.S.A. § 7-147f(b). 16 How many square feet are in a structure is a function of
the interior arrangement of that structure. This is because square footage is calculated
only by multiplying the length of a room by its width, without taking into account height.
For example, if a structure has one floor, and that floor is 20 feet long and 20 feet wide,
the square footage of the structure is 400 square feet. This would be the square
footage, regardless of whether the ceiling of the building was 10 feet or 50 feet high.
However, assume that same building was sufficiently tall that a second floor could be
added, without changing the roofline. If a second floor were added, and that second
floor was also 20 feet long and 20 feet wide, then the square footage of the building
would become 800 square feet, even though the exterior size of the building, i.e. its
volume, had not changed. Thus, how many square feet a building has is determined by
how the interior of the building is arranged.
At one point in the HDC’s written decision denying the Chabad’s application, the
HDC stated that it “would approve an addition equal in square footage to the Deming
House.” Borough Defs.’ Mem. in Supp. App. K at 14 (Doc. No. 187-16) (“HDC
16
It strikes the court that such a proscription places bodies like the HDC in a difficult position in
situations in which an applicant claims that the proposed building will be used for religious exercise. If the
governmental body blinds itself to the interior use of the facility and focuses solely on the exterior, then
the government may inadvertently render a decision that violates the applicant’s RLUIPA rights. On the
other hand, if the governmental body considers how the building will be used so as to avoid violating
RLUIPA, the governmental body may end up violating the state law that prohibits the governmental body
from looking at interior use.
24
Decision”). Later in that paragraph, the decision states that, “[d]epending on the foot
print of the addition and the design of the below grade spaces, the applicant should be
able to design an addition that renders a completed building with over 6,000 square feet
of usable space.” Id. Additionally, Robert D’Andrea, an HDC member who did not vote
on the Chabad’s application, testified at his deposition that the HDC “considered the
square footage that was explained to us by the applicant and the applicant’s architect.”
Pls.’ Mem. in Supp. Ex. 8 at 3 (Doc. No. 205-8) (“D’Andrea Dep.”). 17
To be sure, the HDC Decision also includes other bases for denying the
Chabad’s application, such as the HDC’s determination that the exterior scale of the
addition was incongruous with the originally residential character of the Deming House.
See HDC Decision at 14. The above-ground portions of the proposed addition are,
indeed, approximately three times the mass of the original Deming House. It is also
possible that the HDC’s reference to square footage was simply a result of sloppy
draftsmanship, and that the HDC was using the phrase “square footage” as a proxy for
external size, which the HDC is permitted to consider. However, whether the HDC’s
explanations or the Chabad’s interpretations are more believable is a question for a
factfinder to decide. The Chabad has proffered evidence that creates an issue of fact
as to whether the HDC based its decision on the interior arrangement of the proposed
addition. And, because a decision based on illegal considerations such as interior
17
At oral argument, counsel for the Borough defendants repeatedly argued that the Chabad could
fit all of its facilities that constitute religious exercise in a building the size of which the HDC indicated it
would approve if the Chabad were to rearrange the interior of its proposed building. Although the HDC
did not make such a point in its Decision, its counsel’s recommendation represents the exact type of
consideration of “interior arrangement or use” that the HDC appears to be prohibited from engaging in
under C.G.S.A. § 7-147f(b).
25
arrangement would, as described above, necessarily be arbitrary, there exists a
genuine issue of material fact as to whether the HDC Decision was arbitrary.
Given this determination, the court need only quickly discuss the Chabad’s other
two arguments that the HDC’s decision was arbitrary. One of these arguments it that
the HDC Decision was arbitrary because it took into consideration “below grade or other
unseen areas.” See Pls.’ Mem. in Supp. at 39. The HDC admits that “it has no
jurisdiction over sub-surface space.” Borough Defs.’ Mem. in Supp. at 18. 18 That said,
the only reference in the HDC’s decision to the underground portions of the proposed
addition is the HDC’s statement that, “[d]epending on the foot print of the addition and
the design of the below grade spaces, the applicant should be able to design an
addition that renders a completed building with over 6,000 square feet of usable space.”
It unclear whether, based only on that statement, a reasonable factfinder could
conclude that the HDC’s decision was based on the underground portions of the
proposed addition. Another plausible interpretation is that the HDC, in that sentence,
was merely referring to what the Chabad could do in the future, rather than commenting
on underground portions of the plans the Chabad had submitted. Nevertheless, this
reference to “below grade” spaces creates a genuine issue of material fact as to
whether the HDC’s decision was arbitrary.
Lastly, the Chabad argues that the HDC Decision arbitrarily focused on
preserving the residential character of the Deming House and the neighborhood in
general. See Pls.’ Mem. in Supp. at 40-41. Such a focus was arbitrary, the Chabad
18
At oral argument, the defendants clarified that this means the HDC only has jurisdiction over
the exterior structures that are above ground. So long as an exterior is above ground, the HDC maintains
jurisdiction, regardless of whether a certain part of the structure is on a downward-sloping portion of the
property.
26
claims, because the residential nature of the Deming House, as well as that of the
neighborhood at large, had already been lost through various prior renovations. See id.
While preserving the residential character of originally residential buildings is a goal the
HDC is certainly entitled to pursue, inconsistent pursuit of that goal constitutes arbitrary
behavior. See Guru Nanak Sikh, 456 F.3d at 990 (inconsistently applied concern with
leapfrog development). There is evidence in the record that many of the original
exterior features of the Deming House had been lost over time. See HDC Decision at
10. There is also evidence in the record that additions had been made to other
originally residential structures and that, at least on one occasion (the Oliver Wolcott
Library), the size of the addition was “substantial.” Id. at 14-15. However, there is also
evidence that the overall size of the Deming House had not changed since it was built,
see id. at 10, and that the Wolcott Library addition “was built before the creation of the
Historic District and was probably one of the reasons that prompted its formation,” id. at
15. Thus, there exists a genuine issue of material fact as to whether the HDC’s reliance
on the residential nature of the Deming House as a justification for its denial of the
proposed addition was pretextual. And, because a pretextual decision is akin to the
type of arbitrary behavior described in the case law cited above, there exists another
genuine issue of material fact as to whether the HDC Decision was arbitrary.
b. Whether the denial was conditional
There can be no doubt that the HDC’s denial was, on its face, conditional. The
HDC Decision stated that, “the Commission would approve an addition equal in square
footage to the Deming House.” HDC Decision at 14. A further condition to approval
27
was that the “addition’s roof and width should also be subordinate to the roof and width
of the Deming House.” Id.
An ostensibly conditional denial is properly reclassified as an absolute denial if
the government’s “stated willingness to consider a modified proposal was
disingenuous.” Westchester Day III, 504 F.3d at 352; see also Fortress Bible Church II,
694 F.3d at 219 (“if the town’s stated willingness to consider another proposal is
disingenuous, a conditional denial may rise to the level of a substantial burden”). The
Chabad asserts that reapplication would be futile because it has already made repeated
changes to its plan based on the HDC’s requests, and yet the proposal was still denied.
See Pls.’ Mem. in Supp. at 41-42; Pls.’ L.R. 56(a)(2) Stmt. (Disp.) ¶ 112. Further, the
Chabad argues that “[a]t the fourth and final [HDC] meeting, the HDC refused to identify
any additional concerns when asked.” Pls.’ Mem. in Supp. at 42.
That said, there is no evidence in the record that the HDC would not approve a
modified proposal that complied with the two conditions stated in the HDC Decision.
Not only does the HDC Decision state, unambiguously, that the HDC would approve an
addition that complied with its requested changes, but the defendants also repeatedly
affirmed this position at the most recent oral argument. Further, the record reveals that
the HDC was willing to reach compromises with the Chabad with regard to other
alterations that the Chabad wanted to make. For example, the HDC approved the Star
of David finial, despite concluding that “such a finial and emblem is not historical in
style,” HDC Decision at 13, and also accommodated the Chabad’s desire to construct
the addition using Jerusalem stone, rather than brick, Pls.’ L.R. 56(a)(2) Stmt. (Disp.) ¶
54.
28
While it is true that the HDC did not approve of all of the proposed changes that
the Chabad sought to make, it cannot be the case that a conditional denial is
automatically treated as a final one in any situation where the government does not
approve all of the applicant’s requested changes. There must be more evidence of
actually disingenuous behavior to convince a reasonable factfinder that a government
body’s ostensibly conditional denial was, in reality, a final denial. See, e.g., Fortress
Bible Church I, 734 F.Supp.2d at 502 (conditional denial deemed final where: (1)
defendants stated that no mitigating measures were available despite feedback from
their own consultants stating that mitigation of environmental impact was possible; (2)
Town Board members testified that they had specifically looked for reasons to “kill” the
plaintiff’s application). Such evidence is lacking here and, based on the record, there is
neither a genuine issue of material fact as to whether the HDC’s denial was conditional,
nor as to whether the HDC would honor its conditions.
c. Whether the conditions create a substantial burden
Even if the HDC is not being disingenuous when it says it will approve of an
addition that lowers the roofline, narrows the footprint, and whose above-ground
portions are double the square footage of the Deming House, the court must still
consider whether a genuine issue of material fact exists as to whether those conditions
themselves substantially burden the Chabad’s religious exercise. The question
squarely before the court then is whether a genuine issue of material fact exists as to
whether the Chabad’s religious exercise would be substantially burdened if the Chabad
were limited to an addition of 2,656 square feet of above-ground space, which addition
would also be narrower than the original building, and have a lower roofline. See
29
Westchester Day III, 504 F.3d at 352 (noting that while a religious organization’s
“religious exercise has not been substantially burdened” if the organization “has a ready
alternative” such as “an entirely different plan to meet the same needs,” the school in
that case “could not have met its needs simply by reallocating space within its existing
building”).
While RLUIPA does not afford religious organizations blanket approval to build
however large a facility it desires, it does afford such organizations the right to build a
facility that will allow it to engage in its religious exercise without being substantially
burdened. 19 For example, in Living Water Church of God v. Charter Twp. of Meridian,
258 Fed.Appx. 729 (6th Cir. 2007), which the defendants cite for support, the Sixth
Circuit stated that, “[t]he fact that Living Water’s current facility is too small does not give
the church free reign to construct on its lot a building of whatever size it chooses,
regardless of limitations imposed by the zoning ordinances.” Living Water, 258
Fed.Appx. at 739. However, the court also noted that, “[w]hile Living Water has
outgrown its current facility, the record does not contain the kind of facts that would
permit a finding that the building which the church can construct without an additional
[Special Use Permit] would be so inadequate as to substantially burden Living Water’s
religious exercise in the future.” Id. The clear implication is that, if the building that
19
Of course, even this right is not absolute. RLUIPA does allow a government to “impose or
implement a land use regulation in a manner that imposes a substantial burden on the religious exercise”
of a person or organization if the “imposition of the burden . . . is in furtherance of a compelling
governmental interest; and is the least restrictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000cc(a)(1)(A)-(B). In this case, the defendants argue only that the denial of the
Chabad’s application does not substantially burden its exercise of religion. The defendants do not argue
that, in the event that the HDC’s denial did substantially burden the Chabad’s religious exercise, it would
still not constitute a violation of RLUIPA because the HDC was furthering a compelling governmental
interest through the least restrictive means available. Because the defendants do not raise this argument
at this time, the court does not address it.
30
Living Water was allowed to build would substantially burden its ability to engage in its
religious exercise, the denial would violate RLUIPA. 20 Applied to the facts of this case,
Living Water suggests that, while the Chabad is not necessarily entitled to build
however large an above-ground addition it would like, it must still be able to engage
adequately in its religious exercise in a building the size of which the HDC would allow –
specifically, a building with 5,312 above-ground square feet (2,656 square feet in the
original Deming House times two). If the Chabad were not able to adequately engage
in its religious exercise in an addition that size, then the condition upon which the HDC
would approve the Chabad’s application would itself substantially burden the Chabad’s
religious exercise.
It is at this point where it is once again important to parse which of the Chabad’s
intended uses constitute religious exercise. As discussed earlier, see supra, §
IV.A.1.i.a, on the record before the court there is no genuine issue of material fact that
construction of the sanctuary, rabbi’s study, ritual bath, kosher kitchens, library, and
classrooms constitutes religious exercise, and there remains a genuine issue of material
fact regarding construction of the rabbi’s residence, the pool, and the staff / visitor
housing. As also discussed earlier, see supra, § II, the ritual bath and pool are located
completely underground, the classrooms and library are located on a floor that is
partially underground and partially above-ground, and the sanctuary, rabbi’s study, both
kosher kitchens, and Rabbi Eisenbach’s residence are all located entirely aboveground. The “classroom level,” which contains the classrooms and the library, is 4,941
square feet. See Architectural Renderings at 3. The “sanctuary level,” which contains
20
This assumes there was no compelling governmental interest behind the imposition of the
regulation, as discussed in the preceding footnote. See supra, n. 19.
31
one kitchen, the sanctuary, the rabbi’s study, the coffee bar, and other rooms such as
bathrooms and a coatroom, is also 4,941 square feet. Id. at 4. The “residential level” is
4,766 square feet. Id. at 5. The “staff residential level” is 532 square feet. Id. at 6.
Obviously, a building with 5,312 above-ground square feet cannot accommodate
all of these rooms, at least not at their currently conceived size. However, that begs the
question of whether the Chabad can modify its plans such that it can fit all of these uses
into a smaller building. Although doing so would clearly burden the Chabad, and while
“a burden need not be found insuperable to be held substantial,” Westchester Day III,
504 F.3d at 349, “the burden must have more than a minimal impact on religious
exercise,” Fortress Bible Church II, 694 F.3d at 219, to qualify as a substantial burden.
At oral argument, the defendants argued that the Chabad could rearrange its
plans so as to fit the facilities that constitute religious exercise in an addition whose
above-ground square footage is double that of the Deming House. Specifically, the
defendants argued that the kitchen on the “sanctuary level” could be moved elsewhere
and the sanctuary itself could be made smaller by not fanning the seats. The Chabad,
on the other hand, asserts that it cannot possibly reduce the size of its plans, even an
inch. See Pls.’ Mem. in Supp. at 10 (“Plaintiff’s advisory committee met numerous
times, and the size of the renovation was determined to be the minimum required for
Plaintiff’s mission and purpose to serve the area”). In support of the Chabad’s
assertion, Rabbi Eisenbach declared, under oath, that “[t]he length of the building is
determined by the sanctuary and the need for the kosher kitchen to be located on the
same floor,” and the “length and width of the building are also influenced by the
orientation of the seating arrangement to face Jerusalem.” Rabbi Eisenbach Decl. ¶ 27.
32
Further, the Chabad notes that, “[t]he State Building Code, State Fire Code and the
Americans with Disabilities Act also affect the length and the width as there must be
adequate space for internal circulation and multiple exits.” Id. As for Rabbi Eisenbach’s
residence, the Chabad indicates that it first determined how large it needed the
sanctuary floor to be and then determined how large Rabbi Eisenbach’s residence
would be by simply “stacking” the residence on top of the first floor. Pls.’ Mem. in Supp.
at 36.
Whether or not the Chabad could rearrange its facilities so as to fit all the ones
that will be used for religious exercise within a structure the size of which the HDC
would approve is a question of fact. The defendants argue that the Chabad can do so,
although they have not introduced any evidence showing that the Chabad could fit a
104-person sanctuary 21 that must face Jerusalem into a building whose above ground
square footage is double that of the Deming House. See id. at 10; Rabbi Eisenbach
Decl. ¶ 27. The Chabad, meanwhile, argues it cannot so rearrange its sanctuary, and it
has introduced sworn testimony in support of that stance. See Rabbi Eisenbach Decl.
¶¶ 11, 27. There exists a genuine issue of material fact as to whether the conditions
attached to the HDC’s denial – which allowed the Chabad to build an addition equal in
above-ground square footage to that of the Deming House, with a narrower footprint
and a lower roofline – themselves substantially burden the Chabad’s religious exercise.
21
At oral argument, the defendants conceded that they do not dispute that the Chabad needs a
sanctuary that can accommodate 104 people. Rather, they argued that the sanctuary as designed in the
Chabad’s plans was unnecessarily large to accommodate that many people.
33
d. Existence of feasible alternatives
The Court of Appeals directed the court to consider “whether feasible alternatives
existed for the Chabad to exercise its faith.” Chabad, 768 F.3d at 196. It is not
immediately clear whether “feasible alternatives” refers to a different piece of property
altogether or to alterations in a proposal that can be easily accomplished. However, the
cases that the Second Circuit cited in connection with this factor, and the fact that the
latter scenario is already contemplated and discussed in connection with the factor that
asks whether the conditions of denial themselves impose a substantial burden, see
supra, § IV.A.1.ii.c, suggest that this factor asks whether alternative properties that
could accommodate the Chabad’s religious exercise were available.
“When there is plenty of land on which religious organizations can build churches
(or, as is common nowadays, convert to churches buildings previously intended for
some other use) in a community, the fact that they are not permitted to build everywhere
does not create a substantial burden.” Petra Presbyterian Church v. Vill. of Northbrook,
489 F.3d 846, 851 (7th Cir. 2007). For example, in Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214 (11th Cir. 2004), which the Court of Appeals cited in connection
with this factor, two religious congregations were denied a permit to operate their
synagogues in the town’s business district. Id. at 1228. However, the court noted that,
“the congregations have the alternative of applying for a permit to operate only a few
blocks from their current location.” Id. The court concluded that, “[w]hile walking may
be burdensome and ‘walking farther’ may be even more so, we cannot say that walking
a few extra blocks is ‘substantial,’ as the term is used in RLUIPA.” Id.
34
In cases where courts have found that no feasible alternative existed, these
findings have been supported by factual evidence. For example, in Westchester Day III,
the plaintiff’s architectural firm determined that, in order to accommodate the plaintiff’s
needs, a new building would need to be built, and experts hired by the plaintiff
determined that the proposed site was the only one that could accommodate a new
building. See Westchester Day III, 504 F.3d at 352. In Int’l Church of the Foursquare
Gospel v. City of San Leandro, 673 F.3d 1059 (9th Cir. 2011), the Ninth Circuit
determined that a genuine issue of material fact existed as to whether a feasible
alternative existed based on the fact that the plaintiff’s realtor “examined each of the
196 parcels rezoned for assembly use, and found them unsuitable for the needs of a
large religious congregation.” Id. at 1068.
The defendants argue that, “there is no evidence that the Plaintiffs reasonably
looked for alternative space and that it was unavailable.” However, there is evidence in
the record that Rabbi Eisenbach, with the aid of a real estate agent, visited three other
properties before purchasing the 85 West Street property: (1) 367 Bantam Road, which
the Chabad had previously occupied as a tenant for a period of time; (2) the Gill
property on South Street; and, (3) a property that housed a restaurant called the West
Street Grill. See Borough Defs.’ Mem. in Supp. App. A at 65-67 (“Rabbi Eisenbach
Dep.”); Rabbi Eisenbach Decl. ¶ 12. Although Rabbi Eisenbach apparently felt that the
West Street Grill property was sufficient for the Chabad’s needs, as evidenced by the
fact that he instructed his agent to make an offer on the property after viewing it, see
Rabbi Eisenbach Decl. ¶ 12, Rabbi Eisenbach was told that, by the time he made the
35
offer, the property was no longer available. 22 Id. While the Chabad has certainly not
provided evidence that it engaged in as exhaustive a search as did the plaintiffs in
International Church of the Foursquare Gospel, it has introduced evidence that it
searched for other properties sufficient to raise a genuine issue of material fact as to
whether a feasible alternative property existed. 23
e. Reasonable belief
The Court of Appeals directed the court to consider “whether the Chabad
reasonably believed it would be permitted to undertake its proposed modifications when
it purchased the property at 85 West Street.” Chabad, 768 F.3d at 196. In connection
with this factor, the Court of Appeals cited to Bethel World Outreach Ministries v.
Montgomery Cty. Council, 706 F.3d 548 (4th Cir. 2013) and Petra Presbyterian Church,
22
Rabbi Eisenbach did later come to learn that the property was still available. See Rabbi
Eisenbach Decl. ¶ 12.
23
The court notes, however, that the Chabad’s assertion that the other properties were
insufficient because they were not located on “church row,” amidst the Borough of Litchfield’s other
houses of worship, see Pls.’ Mem. in Supp. Ex. 33 at 3 (Doc. No. 205-33) (“Merriam Letter”), is, without
more, insufficient to create a genuine issue of material fact as to whether alternatives existed. For
example, in Midrash Sephardi the court, before concluding that feasible alternatives did exist, noted that
the congregations “do not claim that their current location [which they were being forced to vacate] has
some religious significance such that their faith requires a synagogue at this particular site.” Midrash
Sephardi, 366 F.3d at 1228. Here, the Chabad does argue that 85 West Street has “religious
significance.” However, the Chabad does not argue that its faith “requires” that its synagogue be placed
either among other houses of worship or in the center of town. Rather, situating its synagogue near the
other churches and in the center of town is a preference. See Pls.’ Mem. in Supp. at 15 (“Historically,
houses of worship have been located in or near the center of the village or town in close proximity to
houses, shops, and local government buildings such as the town hall and the court house. Plaintiff seeks
to build a synagogue alongside other religious institutions near the center of the Borough of Litchfield
consistent with this tradition”) (internal citations omitted). However, as Midrash Sephardi suggests, there
is a difference between a preference and a religiously-mandated requirement. To that end, even a case
cited by the Chabad’s attorney in his presentation to the HDC cuts against the Chabad’s argument. In
Congregation Kol Ami v. Abington Twp., No. Civ.A. 01-1919, 2004 WL 1837037 (E.D. Pa. Aug. 17, 2004),
the court distinguished between a preference and a religiously-mandated requirement, stating that, “The
Plaintiffs, however, do not claim that locating their house of worship in a residential area is a basic tenet
of their faith. While Rabbi Holin states that his synagogue teaches its members ‘the importance of
involvement and service to the community,’ he does not aver that it mandates that worship services take
place next to houses.” Id. at *6.
36
489 F.3d 846, 851 (7th Cir. 2007). As a general proposition, “[w]hen a religious
organization buys property reasonably expecting to build a church, governmental action
impeding the building of that church may impose a substantial burden.” Bethel, 706
F.3d at 557; see also Petra Presbyterian Church, 489 F.3d at 851 (“once the [religious]
organization has bought property reasonably expecting to obtain a permit, the denial of
the permit may inflict a hardship on it”). Further, if the religious organization did, in fact,
operate under this reasonable expectation, it may be substantially burdened “even
though other suitable properties might be available, because the ‘delay, uncertainty, and
expense’ of selling the current property and finding a new one are themselves
burdensome.” Bethel, 706 F.3d at 557 (quoting Saints Constantine & Helen, 396 F.3d
at 901).
In Bethel, the county argued that the religious organization could not have
reasonably expected that it would be permitted to build a church on the purchased
property for two reasons: (1) “because at that time the County had long been
considering changes to its private institutional facilities policy to limit such institutional
uses,” and, (2) because “there were no guarantees that Bethel would get all the
necessary approvals to build what it wanted.” Id. at 558 (internal quotation marks
omitted). The court rejected both arguments because the county “permitted churches in
the rural density transfer zone at the time Bethel bought the property, and [because]
modern zoning practices are such that landowners are rarely guaranteed approvals.”
Id. (emphasis in the original).
On the other hand, in Petra Presbyterian Church, the court concluded that the
religious group did not have a reasonable expectation that it would be permitted to build
37
a church on the purchased property because it had “decided to go ahead and purchase
the property outright after it knew that the permit would be denied.” Petra Presbyterian
Church, 489 F.3d at 851 (emphasis added).
The defendants note that the “laws and regulations applied by the Commission
existed when the Litchfield Chabad purchased the property.” Borough Defs.’ Mem. in
Supp. at 32. They also argue that, “[c]onsidering that the Historic District Commission
had never allowed an addition greater than the original building, the Plaintiffs were or
should have been aware that it was extremely unlikely that they would be permitted to
destroy the historical character of a house by adding an addition four times as large.”
Id. At oral argument, the defendants argued that the only way for the Chabad to have
formulated a reasonable belief as to what the HDC would approve would have been for
the Chabad to actively investigate what the HDC had approved in the past.
For its part, the Chabad argues that its belief that its proposal would be approved
is evidenced by the fact that at the first pre-hearing only the Chabad’s architect and
Rabbi Eisenbach appeared “because [the Chabad] did not expect the need for lawyers
or a legal challenge.” Pls.’ Mem. in Supp. at 33. Whether that belief was reasonable,
however, is another question. To that end, the Chabad attempts to undercut the
defendants’ assertion that the HDC’s denial was predictable because it was applying
impliedly objective “laws and regulations” that had long been on the books. The
Chabad argues that the HDC guidelines are unlike the objective zoning regulations at
play in Petra Presbyterian Church, and that, consequently, the HDC’s decisions are
impossible to predict because they essentially boil down to questions of aesthetics,
which are inherently idiosyncratic. Pls.’ Mem. in Supp. at 34. As a result, the Chabad
38
argues that it “had no way to know whether or not the application would be approved or
denied, but expected a prompt approval.” Id. However, such an assertion still begs the
question of whether the Chabad’s expectation was reasonable.
The record does contain evidence showing that the Episcopal and Catholic
churches are both within the historic district and are essentially equally as massive as
the Chabad’s proposed structure. See id. Ex. A-22 (Episcopal church), Ex. A-26
(Catholic church). Although it is true that those structures were built originally as
churches and not as residential structures, unlike the Deming House, case law suggests
that it would not have been unreasonable for the Chabad to have looked around the
historic district, seen numerous churches which were quite large, and formulated a
belief that it too could build a synagogue / religious structure as large. 24
Further, the reasonableness of the Chabad’s belief is buttressed by the fact that
there exists another originally residential house which includes an addition that was
quite large, relative to the size of the original house. As the HDC admits in its decision,
“the Oliver Wolcott Library . . . consists of a historically significant home, to which is
attached a substantial library addition.” HDC Decision at 14. The HDC attempts to
argue that the large addition to that house is inapposite here because the addition,
which “made fortunate use of a sloping rear yard,” is “hidden below and behind the
colonial house,” is narrower and lower than the original house, and is only visible from
one public street. Id. at 15. However, the Deming House lot also slopes downward in
24
For example, in Bethel the court noted that the county allowed churches to be built in the area
where the plaintiffs bought their property, which supported a finding that the plaintiff’s belief that they
would be able to build a church there was arguably reasonable. See Bethel, 706 F.3d at 558. This is
analogous to the Chabad concluding, based on the existence of other large houses of worship, that its
large house of worship would be allowed.
39
the rear. See Architectural Renderings at 9. Although clearly the HDC did not think the
Deming House property was sufficiently similar to the Wolcott Library property to
approve the Chabad’s addition – despite the downward sloping plot – there exists a
genuine issue of material fact as to whether Chabad could have known, before it bought
the property, that the HDC would deny its addition because its property and addition did
not sufficiently share these traits.
Lastly, there is evidence in the record that indicates that the size of the Chabad’s
addition would have been allowable under the zoning regulations. 25 Borough Defs.’
Mem. in Supp. App. O at 9-10.
The existence of other houses or worship that are equally as massive as the
Chabad’s proposed addition, the existence of another originally residential property that
is currently commercial use and had a very large addition made to it, and the evidence
that the Chabad’s proposal would have complied with the zoning regulations, all raise
genuine issues of material fact as to whether the Chabad’s belief that the HDC would
approve its application was a reasonable one.
f. Close nexus
Lastly, the Court of Appeals instructed the court to consider “whether the
proposed modifications shared a ‘close nexus’ with and would be consistent with
accommodating the Chabad’s religious exercise.” Chabad, 768 F.3d at 196. Both
Fortress Bible Church II and Westchester Day III discuss the idea of a “close nexus.”
25
Although the defendants argue that the Chabad’s proposal would have faced other zoning
challenges, see Borough Defs.’ Mem. in Supp. at 43-45, the defendants concede that the size of the
proposed structure was within the zoning laws’ allowances, see id. at 12 (“The size of the structure was,
for practical purposes, the maximum structure that was allowable under the Town’s zoning coverage
restrictions”).
40
In Westchester Day III the Court of Appeals stated:
We recognize further that where the denial of an institution’s
application to build will have minimal impact on the institution’s
religious exercise, it does not constitute a substantial burden, even
when the denial is definitive. There must exist a close nexus
between the coerced or impeded conduct and the institution’s
religious exercise for such conduct to be a substantial burden on
that religious exercise. Imagine, for example, a situation where a
school could easily rearrange existing classrooms to meet its
religious needs in the face of a rejected application to renovate. In
such case, the denial would not substantially threaten the
institution’s religious exercise, and there would be no substantial
burden, even though the school was refused the opportunity to
expand its facilities.
Westchester Day III, 504 F.3d at 349. In Fortress Bible Church II, the Court of Appeals
concluded that, “the burden on the Church was more than minimal and that there was a
close nexus between the Town’s denial of the project and the Church’s inability to
construct an adequate facility.” Fortress Bible Church II, 694 F.3d at 219. As
Westchester Day III and Fortress Bible Church II indicate, the question asked by the
“close nexus” factor is whether the religious organization is still capable of engaging in
its religious exercise despite the government’s denial of its proposal.
The most instructive discussion of the “close nexus” factor is found in Fortress
Bible Church I. In that case, the court concluded that:
A close nexus exists between the Town denying the Church’s
application to construct its new facility and the Church's religious
exercise. This Court credits Reverend Karaman's testimony
regarding the ways in which the limitations of the Church’s current
facility have impeded his and his congregants’ religious practice.
Reverend Karaman testified that the inadequacies of the current
facility have prevented the Church from performing tasks that it
believes are mandated by God, including expanding the Church’s
membership and discipling [sic] to more members. Reverend
Karaman also testified that the size limitations of the current facility
have impeded the Church’s ability to perform certain religious
practices, to host visiting missionaries, and to teach certain
41
subjects and accommodate handicapped students in its school.
Thus, the Church’s lack of adequate space is significantly curtailing
its religious activities and preventing Plaintiffs from fulfilling their
religious mandate. By precluding the construction of a much
needed facility, Defendants significantly interfered with the Church’s
ability to exercise its religion.
Fortress Bible Church I, 734 F.Supp.2d at 503. The evidence in the case at bar mirrors
that in Fortress Bible Church I. Here, Rabbi Eisenbach has testified that he has “lost
parishioners because of the space limitations of the current facility.” Rabbi Eisenbach
Decl. ¶ 11. He also testified that the Chabad has frequently had to rent space at other
locations in order to create enough room for it to engage in various religious events,
such as Passover Seders, holiday services, and the dedication of a new Torah. See id.
Unlike in the hypothetical scenario discussed in Westchester Day III – where the plaintiff
could simply rearrange the classrooms in its current facility – in this case, Rabbi
Eisenbach has averred that the Chabad cannot engage fully in its religious exercise in
its current facility. In short, on the record before this court, without approval for the
proposed addition, a reasonable jury could find that Rabbi Eisenbach cannot fulfill the
“religious and spiritual mission” that he has been “called to fulfill.” Id.
Just as Reverand Karaman’s testimony in Fortress Bible Church I was sufficient
to convince the court that a close nexus existed between the government’s denial of the
plaintiff’s proposal and the plaintiff’s religious exercise, Rabbi Eisenbach’s testimony in
this case creates a genuine issue of material fact as to whether there exists a close
nexus between the HDC’s denial and the Chabad’s religious exercise.
iii. Conclusion
Genuine issues of material fact exist regarding a number of the factors the Court
of Appeals instructed the court to consider. Specifically, genuine issues of material fact
42
exist as to: the arbitrariness of the denial; whether the conditions of denial create a
substantial burden; the existence of feasible alternatives; the Chabad’s reasonable
belief that the HDC would approve its proposal; and, whether there exists a close nexus
between the denial and the Chabad’s religious exercise. Accordingly, there are genuine
issues of material fact as to whether the HDC’s denial substantially burdened the
Chabad’s exercise of religion. Thus, the Borough defendants’ Motion for Summary
Judgment on the substantial burden claim is denied. 26
2. Nondiscrimination Claim
RLUIPA’s nondiscrimination provision states that, “[n]o government shall impose
or implement a land use regulation that discriminates against any assembly or institution
on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2). The
defendants have also moved for summary judgment on this claim. The court is tasked
with determining whether the Chabad has presented sufficient evidence upon which a
reasonable jury could find a nondiscrimination claim. Chabad, 768 F.3d at 200.
To establish a prima facie nondiscrimination claim under RLUIPA, the Chabad
must come forward with facts sufficient to allow a reasonable jury to conclude that the
defendants, in denying the Chabad’s application, acted with an intent to discriminate
against the Chabad on the basis of religion. See id. at 198-200. Evidence of
discriminatory intent may be direct or circumstantial. Id. at 199. “Recognizing in the
land use context that legislative and administrative actions are rarely motivated by one
purpose only, the Supreme Court in Arlington Heights held that a plaintiff must establish
26
Because the individual defendants raise additional arguments in favor of summary judgment,
which arguments the court has yet to address, it would be premature to deny the individual defendants’
Motion for Summary on the substantial burden claim at this time.
43
that the challenged decision was at least motivated in part by a discriminatory purpose
but not that it was the primary, or dominant purpose.” Church of Scientology of
Georgia, Inc. v. City of Sandy Springs, Ga., 843 F.Supp.2d 1328, 1371 (N.D. Ga. 2012)
(citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
Although the Chabad court noted that the Second Circuit has yet to interpret
RLUIPA’s nondiscrimination provision, the Court of Appeals identified a number of
factors germane to the inquiry. Id. at 198-99. These factors include: (1) “the series of
events leading up to a land use decision”; (2) “the context in which the decision was
made”; (3) “whether the decision or decisionmaking process departed from established
norms”; (4) “statements made by the decisionmaking body and community members”;
(5) “reports issued by the decisionmaking body”; (6) “whether a discriminatory impact
was foreseeable”; and, (7) “whether less discriminatory avenues were available.” Id. at
199. The Court of Appeals culled these factors from two other cases: Bethel, which the
court has already discussed in connection with the substantial burden analysis, and
Church of Scientology.
i. Series of events leading up to decision / context in which decision
made
The Chabad’s most compelling argument with regard to the “series of events /
context” factor is that the HDC allowed other applicants to alter their buildings in ways
that were not historically accurate, thereby raising an inference that the HDC’s denial of
the Chabad’s attempts to do so was religiously motivated. Specifically, the Chabad
notes that the HDC allowed the Methodist Church to apply vinyl siding as a cost-saving
measure, despite the fact that vinyl siding was not historically accurate. See Pls.’ Mem.
in Supp. at 44-45. The defendants, on the other hand, argue that the HDC made similar
44
accommodations for the Chabad by allowing the Chabad to: (1) use stained glass rather
than plain glass on the door; (2) add the Star of David finial to the roof; and, (3) use
Jerusalem Stone on the addition. Borough Defs.’ Mem. in Supp. at 35. That said, the
HDC did not accommodate the largest component of the Chabad’s proposal – the
addition. A reasonable jury could conclude that the HDC’s approval of the three more
minor modifications that the Chabad sought was comparable to the HDC’s approval of
the Methodist Church’s request to use vinyl siding. However, a reasonable jury could
also conclude that the allowance granted to the Methodist Church was a more
significant accommodation than that which the HDC afforded the Chabad. Thus, there
exists evidence in the record relating to this factor that is potentially supportive of the
Chabad’s nondiscrimination claim.
ii. Whether the decision / decisionmaking process deviated from
established norms
As already discussed, see supra, § IV.A.1.ii.a, there is a genuine issue of
material fact as to whether or not the HDC’s decision deviated from established norms
by considering the interior square footage of the addition.
The Chabad also argues that the decisionmaking process deviated from
established norms. Gillian Bearns, who served as the Chabad’s counsel during the
HDC hearings, declared under oath that, “[a]t various points during the administrative
hearing process, the HDC, through its attorney, James Stedronsky, attempted to
prevent Plaintiffs from submitting relevant documents and to delete or remove
documents already submitted and marked as exhibits from the administrative record.”
See Pls.’ Mem. in Supp. Ex. C ¶ 20 (Doc. No. 205-35) (“Bearns Decl.”). The
defendants do not address this argument in their Reply memoranda.
45
Lastly, the Chabad argues that the decisionmaking process deviated from
established norms insofar as HDC members met and spoke about the Chabad’s
application outside of the public hearings. Pls.’ Mem. in Supp. at 46. The record
supports the Chabad’s assertion that certain HDC members did discuss the Chabad’s
application outside of official proceedings. For example, Hillman admitted that, after the
first pre-hearing, he spoke to Crist outside of a public hearing. See Borough Defs.’
Mem. in Supp. App. C at 2 (Doc. No. 187-6) (“Hillman Aff.”). However, Hillman claims
that that conversation was limited to a discussion of a technical aspect of the Chabad’s
application having to do with inconsistencies in the plans submitted by the Chabad.
See id. Similarly, although Crawford admitted that she spoke to Hillman and Kuhne
outside a public hearing, she states that she only spoke to them about the size of the
Chabad’s proposed addition. See Crawford Dep. at 4.
Hillman testified that the HDC members were instructed not to discuss the
Chabad’s case outside of the public hearings. See Hillman Aff. ¶ 5. Thus, although the
individual HDC members have proffered explanations that purport to prove that their exparte conversations were facially nondiscriminatory, there is evidence in the record that
a number of HDC members discussed the Chabad’s application outside of the public
hearing, despite being instructed not to, and that the HDC attempted to prevent the
Chabad from submitting and removing documents from the administrative record. Thus,
there exists evidence in the record relating to this factor that is supportive of the
Chabad’s nondiscrimination claim.
46
iii. Statements made by the HDC or the public
The Chabad’s most persuasive argument related to “statements made by the
HDC / public” factor focuses on comments made by HDC member Acerbi at the first
pre-hearing, and the presumptive effect of those comments. At the pre-hearing, Acerbi
said, “[w]e have to get the public out on this project for the public hearing.” Pls.’ Mem.
in Supp. at 46. Following the pre-hearing, the public did, in fact, attend the various
public hearings in great numbers. See id.; see also D’Andrea Dep. at 6 (noting that in
the three years he had been a member of the HDC, the only times the location for the
public hearings had to be moved to accommodate the public were for the three hearings
on the Chabad’s application). Although the Chabad does not argue that Acerbi’s
comments were directly anti-Semitic, it argues that they were said “with a tone of
urgency seaming [sic] dismissive of the proposal.” Pls.’ Mem. in Supp. at 46.
With regard to the content of Acerbi’s comments, even if they were not obviously
anti-Semitic, it is possible for a reasonable factfinder to infer that, when an HDC
member urges the public to turn out en masse for a public hearing on a religious
organization’s application, the HDC member is acting with religious animus. 27 And, with
regard to the tone with which Acerbi made her comments, it is also possible for a
reasonable factfinder to infer religious animus from a hostile tone. See Church of
Scientology, 843 F.Supp.2d at 1372 (plaintiffs asserted, and the court agreed, that one
piece of circumstantial evidence supporting a potential inference of religious
discrimination was “the negative tenor of the questions and statements made by two
27
Although “[a]n unconstitutional motive on the part of one member of the City Council is
insufficient to impute an unconstitutional motive to the entire City Council as a whole,” Church of
Scientology, 843 F.Supp.2d at 1375, it can still serve as one piece of circumstantial evidence, see id. at
1375-76.
47
Council members” at a public hearing”) (internal quotation marks omitted). Thus, the
record contains evidence related to this factor that is supportive of the Chabad’s
nondiscrimination claim.
iv. Report issued by the decisionmaking body
The Chabad does not offer any new arguments as to the “report issued by the
decisionmaking body” factor, instead simply repeating its allegation that the HDC
“applied arbitrary, capricious and illegal considerations to issue the decision.” Pls.’
Mem. in Supp. at 47. The court has already addressed the alleged irregularities in the
decision / decisionmaking process, see supra, § IV.A.2.ii. The evidence in the record
related to this factor is supportive of the Chabad’s nondiscrimination claim.
v. Whether a discriminatory impact was foreseeable
The record shows that one of the Chabad’s attorneys, Peter Herbst, informed the
HDC that denying the Chabad’s application would substantially burden its exercise of
religion. Specifically, Herbst told the HDC:
If you were to deny this addition to the property because of its size
or because of its massing, you would be imposing a substantial
burden on the Chabad’s religious exercise. Rabbi Eisenbach has
made it unequivocally clear that the size and the mass of this
building is based on what is absolutely essential for the Chabad to
be able to fulfill its religious mission. Denying this application,
because the mass or the size of the addition is in your opinion too
large, substitutes your opinion, for that of Rabbi Eisenbach as to
what is necessary to fulfill the Chabad’s religious mission. The
Federal and State Constitutions prohibit you, the government, from
imposing that secular judgment upon a place of worship
Pls.’ Mem. in Supp. Ex. D Ex. 2 at 5 (Doc. No. 205-36) (“Herbst Stmt. to HDC”). In
Church of Scientology, the plaintiff’s attorney provided the town with a functionally
identical warning. See Church of Scientology, 843 F.Supp.2d at 1373-74.
48
Nevertheless, the town offered the Scientology plaintiffs a conditional approval for a
building smaller than the plaintiffs desired. See id. As a result, the court noted that, “[a]
reasonable factfinder could find that the City’s conditional approval limiting the size of
the Church to 32,000 square feet despite its knowledge, or at least the foreseeability, of
the predictable effect on Plaintiff’s effort to create and practice as the Ideal
Organization, could support an inference of discriminatory intent.” Id. at 1374. Although
“disparate impact and foreseeable consequences, without more, do not establish a
constitutional violation,” “actions having foreseeable and anticipated disparate impact
are relevant evidence to prove the ultimate fact, forbidden purpose.” Columbus Bd. of
Educ. v. Penick, 443 U.S. 449, 464 (1979); see also Soberal-Perez v. Heckler, 717 F.2d
36, 42 (2d Cir. 1983) (“While it is true, as plaintiffs argue, that the fact that a particular
action has a foreseeable adverse impact may be relevant evidence in proving an equal
protection claim, standing alone that fact is insufficient to establish discriminatory
intent”) (internal citations omitted). In the case at bar, the foreseeable impact of the
HDC’s denial serves as evidence that the HDC acted with a religiously discriminatory
intent. Thus, there is evidence in the record related to this factor that is supportive of
the Chabad’s nondiscrimination claim.
vi. Whether less discriminatory avenues were available
The “less discriminatory avenue” factor generally asks whether the government
“ignored less [discriminatory] options which would have furthered its policies as
effectively as the more [discriminatory] option it chose.” United States v. Bd. of Sch.
Comm’rs of City of Indianapolis, Ind., 573 F.2d 400, 413 (7th Cir. 1978); see also
Church of Scientology, 843 F.Supp.2d at 1375 (citing this operative language from City
49
of Indianapolis). With regard to this factor, the Chabad argues only that, “[t]he
Defendants should allow Plaintiff to have a facility at least the same in height and scale
as the Christian Churches. Anything less would be discriminatory.” Pls.’ Mem. in Supp.
at 48. As already discussed, see supra, § IV.A.1.ii.e, the Catholic and Episcopal
churches are essentially as massive as the Chabad’s proposed addition. The Chabad
has also asserted that it could not have reduced the size of the addition at all. See Pls.’
Mem. in Supp. at 10. Thus, there is no evidence in the record that an alternative, less
discriminatory option was presented to the HDC and that the HDC ignored this option.
Accordingly, this factor is neutral.
vii. Conclusion
Upon review of the various factors discussed in Chabad, there is sufficient
evidence in the record to allow a reasonable factfinder to conclude that the HDC acted
with an intent to discriminate against the Chabad on the basis of religion. See Church
of Scientology, 843 F.Supp.2d at 1376 (“In light of the totality of the circumstances,
there is sufficient evidence in the record to create a triable issue of fact on whether the
City acted with a discriminatory purpose in its conditional approval of Plaintiff’s
Application by limiting the square footage of the Church based on an inadequate
parking allocation and thereby allegedly rendering the building unfit for the practice of
Scientology”). Therefore, the defendants’ Motion for Summary Judgment on the
Chabad’s nondiscrimination claim is denied.
3. Individual Defendants’ Defenses
In addition to arguing that the HDC Decision did not substantially burden the
Chabad’s religious exercise or discriminate against the Chabad on the basis of religion,
50
Hillman and Crawford argue that they are entitled to summary judgment on certain
grounds that pertain only to them, as individual defendants, and not to the Borough
defendants. Specifically, Crawford argues that she is entitled to summary judgment
because she did not vote on the Chabad’s application. Hillman and Crawford (to the
degree that the court holds that Crawford is not entitled to summary judgment based on
her first argument) also argue they are entitled to summary judgment on both claims
because they are protected by quasi-judicial absolute immunity or, in the alternative,
qualified immunity.
i. Whether Crawford Voted on the Chabad’s Application
Crawford argues that, because RLUIPA only applies to government bodies and
government officials acting under color of state law, Crawford could not possibly have
violated RLUIPA because she never voted on the Chabad’s application and, as such,
never acted in an official governmental capacity. See Indiv. Defs.’ Mem. in Supp. at 2021. The Chabad argues that there is a genuine issue of material fact as to whether or
not Crawford voted. See Plaintiffs’ Memorandum of Law in Response to Defendants’
Glenn Hillman and Kathleen Crawford’s Motion for Summary Judgment at 35-36 (Doc.
No. 206) (“Pls.’ Mem. in Supp. Re: Indiv. Defs.”).
The court concludes that a genuine issue of material fact as to whether Crawford
voted on the Chabad’s application exists. On the one hand, the minutes of the HDC
meeting in which the HDC voted on the Chabad’s application contain both a “Recording
of Attendance” and a “roll call vote.” See HDC Decision at 2. Based on the minutes,
Crawford was present at the meeting and served as an Alternate Commissioner. See
id. According to the “roll call vote,” only HDC members Montebello, Acerbi, Hillman,
51
Sansing, and Crist voted on the Chabad’s application. Id. The “roll call vote” does not
contain any record of Crawford voting. Thus, it would appear she did not vote.
However, at her deposition, Crawford testified, unequivocally, that she voted on
the Chabad’s application.
Q: Okay. What was your vote on the Chabad’s application?
A: It was a two-part vote. One was on the cupola. And the
other was on the size of the building, the building itself. I
voted against the building.
Crawford Dep. 81:24-82:3. Thus, because a genuine issue of material fact exists as to
whether Crawford voted on the Chabad’s application, her Motion for Summary
Judgment on the basis that she never acted in an official capacity is denied.
ii. Immunity Defenses
a. Qualified Immunity
“When a defendant invokes qualified immunity to support a motion for summary
judgment, courts engage in a two-part inquiry: whether the facts shown ‘make out a
violation of a constitutional right,’ and ‘whether the right at issue was clearly established
at the time of defendant’s alleged misconduct.’ ” Taravella v. Town of Wolcott, 599 F.3d
129, 133 (2d Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 223-24 (2009)). It
is within the court’s discretion to decide which part of the two-part inquiry to address
first. Pearson, 555 U.S. at 236. That being said, the first part of the inquiry functions as
a threshold inquiry: if, on the facts presented, the plaintiff cannot establish that it
suffered a statutory or constitutional violation, there is no need to proceed to the second
part of the inquiry. See Southerland v. City of New York, 681 F.3d 122, 125 (2d. Cir.
2012). As already discussed, genuine issues of material fact exist with regard both to
52
whether the defendants violated RLUIPA’s substantial burden and nondiscrimination
provisions. However, because it is still possible that the individual defendants are
protected by qualified immunity – even in the event that a jury determines that the
Chabad’s rights under RLUIPA were violated – the court will proceed to discuss the
second prong of the qualified immunity inquiry. 28
“To be clearly established, the contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing violates that right.”
Taravella, 599 F.3d at 133 (internal quotation marks and alterations omitted). “For a
right to be clearly established for purposes of qualified immunity, it is sufficient if
decisions of the Supreme Court or of the appropriate circuit have defined the contours
of the right with reasonable specificity.” Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000).
Still, whether a right is “clearly established” “is not answered by reference to how courts
or lawyers might have understood the state of the law. Rather, the relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Southerland, 681 F.3d at 125. “Qualified immunity thus shields government officials
from liability when they make reasonable mistakes about the legality of their actions . . .”
28
The court notes that in Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2007), the Court of Appeals
indicated that, if there existed unresolved issues of fact relating to the first prong of the qualified immunity
inquiry, then the court should wait until the jury determined the historical facts before turning to the
second prong of the inquiry. See id. at 368 (“If there is no dispute as to the material historical facts, the
matter of whether the officer's conduct was objectively reasonable is an issue of law to be determined by
the court. If there is such a dispute, however, the factual questions must be resolved by the factfinder.
Once the jury has resolved any disputed facts that are material to the qualified immunity issue, the
ultimate determination of whether the officer’s conduct was objectively reasonable is to be made by the
court) (internal quotation marks, alterations, and citations omitted). However, Zellner was decided before
the Supreme Court, in Pearson, expressly granted district courts permission to consider the second prong
before the first.
53
Sudler v. City of New York, 689 F.3d 159, 174 (2d. Cir. 2012) (internal quotation marks
omitted).
The thrust of the individual defendants’ argument is that the individual HDC
members “attempt[ed] to follow the difficult constitutional and statutory standards
applicable to the application as discussed by the Second Circuit in Westchester Day
[III].” Indiv. Defs.’ Mem. in Supp. at 21. The court sympathizes with the difficult task
presented to the HDC members, and it agrees that many aspects of RLUIPA
jurisprudence were unclear at the time that the HDC was deciding on the Chabad’s
application. Further, the record does contain evidence indicating that the HDC
members attempted to adhere to the recent RLUIPA jurisprudence when making its
decision on the Chabad’s application. See, e.g., HDC Decision at 12. That said, one
thing that was absolutely clear under RLUIPA at the time the HDC was deliberating over
the Chabad’s application was that the HDC’s decision could not permissibly be based
on arbitrary, capricious, or illegal grounds. See Westchester Day III, 504 F.3d at 35053.
And, as already discussed, see supra, § IV.A.1.ii.a, there exists a genuine issue
of material fact as to whether the HDC’s decision was based on illegal considerations
such as interior arrangement or square footage. Because it would have been clear to
the HDC that its decision could not rest on illegal considerations, if the jury were to
determine that the HDC’s decision was, in fact, predicated on illegal considerations,
then the court, as a matter of law, would have to conclude that the individual defendants
are not entitled to qualified immunity. However, if the jury were to determine that the
HDC’s decision violated RLUIPA – but not because it was based on illegal
54
considerations – then the court would return to the question of whether the HDC’s
decision, though violative of the Chabad’s rights, was nevertheless the product of the
type of reasonable mistake that qualified immunity immunizes. Thus, at this juncture,
the individual defendants’ Motion for Summary Judgment based on qualified immunity is
denied. 29
ii. Quasi-Judicial Absolute Immunity
The individual defendants also argue that they are entitled to quasi-judicial
absolute immunity as to both the Chabad’s substantial burden and nondiscrimination
claims. See Indiv. Defs.’ Mem. in Supp. at 18. The defendants do not present separate
arguments for each of the Chabad’s claims, likely because the legal analysis would not
differ. Accordingly, the court will discuss whether the individual defendants are entitled
to absolute immunity as to both of the Chabad’s claims simultaneously.
The party seeking quasi-judicial absolute immunity bears the burden of proving
that he is entitled to such immunity. See Gross v. Rell, 585 F.3d 72, 81 (2d Cir. 2009).
29
In their brief, the individual defendants argue that they are entitled to qualified immunity “from
this suit.” Individual Defendants’ Memorandum in Support of Their Motion for Summary Judgment at 21
(Doc. No. 185-2) (“Indiv. Defs.’ Mem. in Supp.”). The natural reading on this assertion is that the
individual defendants are arguing they are entitled to summary judgment as to both the substantial
burden and nondiscrimination claims based on qualified immunity.
However, the substance of the individual defendants’ brief on this point only seems to address
qualified immunity as it pertains to the substantial burden claim. See id. at 21-22. Further, even if the
court were to construe the individual defendants’ memorandum in support as arguing that they are
entitled to summary judgment on the nondiscrimination claim based on qualified immunity, this argument
would fail. As the discussion of the Chabad’s nondiscrimination claim illustrates, a reasonable factfinder
could conclude, based on the evidence in the record, that the HDC discriminated against the Chabad on
the basis of religion. See supra, § IV.A.2. An entity’s right not to be discriminated against on the basis of
religion is articulated by the plain text of RLUIPA. See 42 U.S.C. 2000cc(b)(2) (“No government shall
impose or implement a land use regulation that discriminates against any assembly or institution on the
basis of religion or religious denomination”) (emphasis added). Further, because a plaintiff needs to
prove that the defendant intended to discriminate in order for the plaintiff to prevail on a nondiscrimination
claim, if the factfinder determines that the defendants did discriminate against the Chabad on the basis of
religion, it would seem hard for the defendants to argue that their discriminatory actions were the types of
“reasonable mistakes” that qualified immunity exists to protect. Thus, at the very least, there is a genuine
issue of material fact as to whether the individual defendants would be entitled to qualified immunity on
the Chabad’s nondiscrimination claim.
55
“[F]ederal law on quasi-judicial immunity applies to state officials sued in federal court
on federal claims,” as is the case here. Id. However, neither the defendants, nor the
plaintiffs argue federal law on this issue, but instead rely on Connecticut state law.
Although there is some significant overlap between the factors federal and Connecticut
courts look to when deciding whether an official is entitled to quasi-judicial immunity, the
considerations are not co-extensive. Specifically, the defendants, having cited to a
Connecticut Supreme Court case that articulates three factors, only discuss these three
factors. See Indiv. Defs.’ Mem. in Supp. at 19-20 (relying on Carruba v. Moskowitz, 274
Conn. 533 (2005). The Court of Appeals for the Second Circuit, however, has
articulated six factors to consider. See Gross, 585 F.3d at 88 (citing Cleavinger v.
Saxner, 474 U.S. 193, 202 (1985)).
Although the defendants appear to make a compelling case that they are entitled
to quasi-judicial immunity, in light of the parties’ incomplete briefing, and in light of the
fact that no court within the Second Circuit has yet to address whether members of a
historic district commission are entitled to quasi-judicial immunity, the court declines to
decide the question as an issue of first impression at this time. See, e.g., Tomlins v.
Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 366-67 (S.D.N.Y.
2011) (“While it is true that an analysis concerning the applicability of quasi-judicial
immunity under state versus federal law may overlap in significant ways, Defendants,
who bear the burden, have not addressed the [federal] factors and have proffered
neither facts nor arguments sufficient for this Court to determine that quasi-judicial
immunity should apply to Defendants under that federal standard. The Court is unable
to locate any Second Circuit authority applying such immunity under federal law in these
56
circumstances and therefore declines to decide the question as an issue of first
impression”). Accordingly, the individual defendants’ Motion for Summary Judgment on
the basis of quasi-judicial immunity is denied. However, the individual defendants may
move for summary judgment on the basis of quasi-judicial immunity with briefing that
discusses federal law.
B. Motions to Dismiss Rabbi Eisenbach as a Plaintiff
When the defendants filed their original Motion to Dismiss Eisenbach as a
Plaintiff, they claimed that, because Eisenbach did not possess a property interest in the
85 West Street property, he lacked standing to bring a RLUIPA claim. See
Memorandum in Support of Motion to Dismiss Against Rabbi Joseph Eisenbach 8-10
(Doc. No. 88-1) (“Mem. in Supp. of Defs.’ Mot. to Dismiss”). Accordingly, the
defendants’ Motion was styled as a motion to dismiss under Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Id. at 1. When Rabbi Eisenbach responded to the
motion, he also treated the motion as one brought under Rule 12(b)(1). See Plaintiffs’
Opposition to Individual Defendants’ Motion to Dismiss Rabbi Eisenbach 2 (Doc. No.
117) (Pls.’ Opp. to Mot. to Dismiss). After the court granted the Motion to Dismiss, the
Court of Appeals vacated that decision on the ground that the court incorrectly analyzed
the Motion as a motion to dismiss for lack of standing, rather than as a motion to
dismiss for failure to state a claim. See Chabad, 768 F.3d at 201-02.
The question squarely before the court is whether Rabbi Eisenbach has stated a
claim upon which relief can be granted. Because neither party has re-briefed this issue,
the court will address the arguments the parties presented in their original briefing on
the Motion to Dismiss Rabbi Eisenbach as a Plaintiff.
57
Both RLUIPA’s substantial burden and nondiscrimination provisions apply only to
“land use regulations[s].” 42 U.S.C. §§ 2000cc(a)(1); 2000cc(b)(2). “Land use
regulation” is defined as, “a zoning or landmarking law, or the application of such a law,
that limits or restricts a claimant’s use or development of land (including a structure
affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or
other property interest in the regulated land or a contract or option to acquire such an
interest.” 42 U.S.C. § 2000cc-5(5). Accordingly, to state a claim under RLUIPA’s
substantial burden or nondiscrimination provision, the plaintiff must have “an ownership,
leasehold, easement, servitude, or other property interest in the regulated land or a
contract or option to acquire such an interest.”
The defendants argue that, because only the Chabad purchased the 85 West
Street property, Rabbi Eisenbach possesses no property interest in the property. See
Mem. in Supp. of Defs.’ Mot. to Dismiss at 8. Rabbi Eisenbach argues that he has a
property interest stemming either from his anticipated exclusive use of the parsonage
portion of the proposed addition or from his right, granted to him by the Chabad, to
place a mortgage lien on the 85 West Street property. See Pls.’ Opp. to Mot. to Dismiss
at 4-5.
Before discussing whether Rabbi Eisenbach’s claimed property interests actually
constitute property interests, the court notes that there is no mention of Rabbi
Eisenbach’s mortgage lien in the Complaint (Doc. No. 1), the Amended Complaint (Doc.
No. 6), the Second Amended Complaint (Doc. No. 25), or the Third Amended Complaint
(Doc. No. 54). Rather, the first mention of it comes in Rabbi Eisenbach’s sworn
declaration, dated February 18, 2011, and submitted as an exhibit to Rabbi Eisenbach’s
58
opposition to the Motion to Dismiss. See Pls.’ Opp. to Mot. to Dismiss Ex. A ¶ 15 (Doc.
No. 117-1) (“2011 Rabbi Eisenbach Decl.”). When the Motion to Dismiss was styled as
a Rule 12(b)(1) motion, the court appropriately considered Rabbi Eisenbach’s
Declaration, even though it was not part of the Complaint, because courts “may refer to
evidence outside the pleadings” when deciding a Rule 12(b)(1) motion. Makarova v.
U.S., 201 F.3d 110, 113 (2d Cir. 2000). However, now that the Motion to Dismiss is
styled as a Rule 12(b)(6) motion, the court will not consider Rabbi Eisenbach’s
Declaration. See Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 156
(2d Cir. 2006) (“the district court committed reversible error when, in ruling that the
complaint failed to state a claim for which relief could be granted, it considered matters
outside plaintiff’s complaint”). Accordingly, in connection with the Motion to Dismiss for
failure to state a claim, the court will not consider Rabbi Eisenbach’s argument that he
has a property interest based on his mortgage lien.
With regard to Rabbi Eisenbach’s claim that he has a property interest because
he plans to live in the proposed building, the court first notes that, in Connecticut, a nonowner can acquire a property interest by entering into an oral agreement with the owner
to lease the property. See Moutinho v. Planning and Zoning Comm’n of City of
Bridgeport, 899 A.2d 26, 29, 33 (Conn. 2006). Further, because RLUIPA specifically
applies to anyone with a contract to acquire a property interest, an oral agreement to
lease, purchase, or occupy property would clearly situate the would-be lessee within
RLUIPA’s umbrella. The Third Amended Complaint, which was filed on behalf of both
the Chabad and Rabbi Eisenbach, states that the addition will include “accessory
rabbinical housing dedicated solely to its full-time rabbi’s use.” Third Am. Compl. ¶ 1.
59
This assertion is sufficient to permit the reasonable inference that the Chabad and
Rabbi Eisenbach entered into an oral agreement that allows Rabbi Eisenbach exclusive
use of the rabbinical housing. Accordingly, the Third Amended Complaint contains
factual matter sufficient to support the conclusion that Rabbi Eisenbach had a contract
to acquire a property interest in 85 West Street
However, an alternative ground exists for dismissing Rabbi Eisenbach as a
plaintiff with regard to the nondiscrimination claim. The nondiscrimination provision bars
the government from discriminating against “any assembly or institution” on the basis of
religion. 42 U.S.C. § 2000cc(b)(2). It does not bar the government from discriminating
against an individual. On the other hand, the substantial burden provision bars the
governments from substantially burdening the religious exercise “of a person, including
a religious assembly or institution . . . ” 42 U.S.C. § 2000cc(a)(1). This distinction
makes it clear to the court that the nondiscrimination provision does not provide a cause
of action for individuals such as Rabbi Eisenbach. 30
The Motions to Dismiss Rabbi Eisenbach as a Plaintiff are granted in part and
denied in part. The Motions to Dismiss Rabbi Eisenbach are granted with regard to the
nondiscrimination claim, and denied with regard to the substantial burden claim.
V.
CONCLUSION
For the above-stated reasons, the Individual Defendants’ Motion for Summary
Judgment (Doc. No. 185) is DENIED. The individual defendants will be granted 21
30
Aside from the fact that the statutory language is clear, Rabbi Eisenbach’s failure to address
this argument, which the individual defendants raised in their brief, see Indiv. Defs.’ Mem. in Supp. at 23,
renders Rabbi Eisenbach’s nondiscrimination claim abandoned, see Jackson v. Fed. Exp., 766 F.3d 189,
198 (2d Cir. 2014) (“in the case of a counseled party, a court may, when appropriate, infer from a party’s
partial opposition that relevant claims or defenses that are not defended have been abandoned”).
60
days, until February 17, to submit an additional motion and briefing with regard to the
quasi-judicial immunity claim, which briefing discusses federal law. If the individual
defendants submit additional briefing, the plaintiffs will have fourteen days, until March
2, to file a brief in opposition. The individual defendants will then have seven days, until
March 9, to file a reply.
The Borough Defendants’ Motion for Summary Judgment (Doc. No. 187) is
DENIED. The Individual Defendants’ Motion to Dismiss Rabbi Eisenbach as Plaintiff
(Doc. No. 88) is GRANTED IN PART AND DENIED IN PART. The Motion is granted
with regard to the nondiscrimination claim, and denied with regard to the substantial
burden claim. The Borough Defendants’ Motion to Dismiss Rabbi Eisenbach as Plaintiff
(Doc. No. 141) is GRANTED IN PART AND DENIED IN PART. The Motion is granted
with regard to the nondiscrimination claim, and denied with regard to the substantial
burden claim.
SO ORDERED.
Dated at New Haven, Connecticut this 27th day of January 2016.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
61
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