Chabad Lubavitch of Litchfield County Inc et al v. Litchfield et al
Filing
253
RULING denying 229 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 9/29/2016. (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)
SEPTEMBER 29, 2016
RULING RE: DEFENDANTS GLENN HILLMAN AND KATHLEEN CRAWFORD’S
MOTION FOR SUMMARY JUDGMENT (DOC. NO. 229)
I.
INTRODUCTION
Plaintiffs, the Chabad Lubavitch of Litchfield County, Inc. (“the Chabad”) and
Rabbi Joseph Eisenbach, filed a Third Amended Complaint against the Borough of
Litchfield, Connecticut, the Historic District Commission of the Borough (“the HDC”), and
HDC members Wendy Kuhne (“Kuhne”)1, Glenn Hillman (“Hillman”), and Kathleen
Crawford (“Crawford”). Only Counts Six and Seven of the Third Amended Complaint
remain. Both remaining counts allege violations of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc et seq.
Hillman and Crawford have moved for summary judgment on both counts on the
ground that they are entitled to quasi-judicial absolute immunity. See Defendants Glenn
Hillman and Kathleen Crawford’s Motion for Summary Judgment at 1-2 (Doc. No. 229).
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).
1
II.
FACTUAL BACKGROUND
The Borough of Litchfield is an independent municipal corporation, whose
boundaries are wholly within the Town of Litchfield. See Rule 56(a)(1) Statement of
Facts in Support of the Individual Defendants’ Motion for Summary Judgment re:
Absolute Immunity ¶ 7 (Doc. No. 229-2) (“L.R. 56(a)(1) Stmt.”). The Borough is
governed by a municipal charter adopted in 1989, pursuant to the Connecticut General
Statutes. Id. Pursuant to the provisions of Chapter 97a of title 7 of the Connecticut
General Statutes, C.G.S.A. §§ 7-147a et seq., the HDC governs aspects of the
construction and modification of buildings within the Litchfield Historic District. Id. ¶ 8;
see also C.G.S.A. § 7-147a. Anyone seeking to erect or alter a structure within the
Litchfield Historic District must receive a certificate of appropriateness from the HDC
before commencing construction. See C.G.S.A. § 7-147d(a). Section 7-147c(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. See L.R. 56(a)(1) Stmt. ¶ 9; see
also C.G.S.A. § 7-147c(e).
Seeking to alter and add to a building it purchased within the Litchfield Historic
District, the Chabad applied for a certificate of appropriateness in 2007. See generally
L.R. 56(a)(1) Stmt. ¶¶ 14 – 27. The HDC held a series of public hearings in connection
with the Chabad’s application; it ultimately denied the Chabad’s application without
prejudice. See id.
III.
LEGAL STANDARD
As the parties seeking quasi-judicial absolute immunity, Hillman and Crawford
bear the burden of demonstrating that they are entitled to such immunity. See Gross v.
Rell, 585 F.3d 72, 88 (2d Cir. 2009). “[F]ederal law on quasi-judicial immunity applies to
2
state officials sued in federal court on federal claims,” as is the case here. Id. at 81.
The Supreme Court has articulated six factors that courts must consider in determining
whether a governmental official is entitled to absolute immunity. The factors are:
(a) the need to assure that the individual can perform his functions
without harassment or intimidation;
(b) the presence of safeguards that reduce the need for private
damages actions as a means of controlling unconstitutional
conduct;
(c) insulation from political influence;
(d) the importance of precedent;
(e) the adversary nature of the process; and
(f) the correctability of error on appeal.
Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz v. Economou, 438 U.S. 478
(1978)). This “[i]mmunity analysis is ‘functional’ and scrutinizes the actual
responsibilities of the government official in question in light of six factors.” Tulloch v.
Coughlin, 50 F.3d 114, 116 (2d Cir. 1995). Quasi-judicial absolute immunity is “rare and
exceptional.” Cleavinger, 474 U.S. at 202. “[Q]ualified immunity represents the norm”
for executive officials. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).
In this Circuit, the question of whether local board or commission members may
receive federal quasi-judicial immunity for land use decisions appears to have only been
addressed a few times and only at the district court level.2 The Western District of New
York refused to grant quasi-judicial immunity to members of a village board of trustees
in deciding a zoning dispute. See Altaire Builders, Inc. v. Vill. of Horseheads, 551 F.
2 The
Second Circuit has held that town board members had absolute legislative immunity for
their adoption of a zoning master plan and amendment of zoning ordinances. See Orange Lake
Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1224 (2d Cir. 1994).
3
Supp. 1066, 1073 (W.D.N.Y. 1982). The court in Altaire noted that zoning has not
traditionally been characterized as a judicial function. Id. at 1073. The court refused to
grant immunity despite the fact that the village board provided notice, held a hearing
which was required by law, considered evidence offered by both sides, and made
findings of fact and conclusions. See id. at 1071. The Altaire court stated:
The nature of the hearing required by the zoning ordinance is
not the adjudicative hearing conducted in a judicial or quasijudicial forum. It is a public hearing, and its function
encompasses a variety of objectives. It is designed to inform
the Trustees of the merits of the proposal. It is also intended
to inform the public and to allow the Trustees to determine the
public's response to the proposal and, in particular, the
response of landowners as to the effect of the proposal on
their interests. While evidence is received, it is clearly not
subject to the rules of evidence, and may in fact be rife with
hearsay, conjecture and speculation, but is nonetheless
acceptable for the purpose of gauging public opinion.
Id. at 1072. The Southern District of New York expressly adopted Altaire’s reasoning,
and held that members of a Village Board of Zoning Appeals lacked judicial immunity.
See Rodrigues v. Vill. of Larchmont, N.Y., 608 F. Supp. 467, 475–76 (S.D.N.Y. 1985).3
The Third Circuit, on the other hand, has granted quasi-judicial immunity to
members of a board of supervisors, in connection with a zoning decision. See Dotzel v.
Ashbridge, 438 F.3d 320, 327 (3d Cir. 2006). The Third Circuit granted immunity in part
because, “zoning disputes can be among the most fractious issues faced by
3
The Southern District of New York has also refused to grant quasi-judicial immunity to a village
building inspector and the village’s mayor in one zoning dispute, see Yeshiva Chofetz Chaim Radin, Inc.
v. Vill. of New Hempstead, 98 F. Supp. 2d 347, 357 (S.D.N.Y. 2000), and to a village building inspector in
another zoning dispute, see Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d
357, 336 (S.D.N.Y. 2011).
The scarcity of Second Circuit cases on federal quasi-judicial immunity for members of local
boards and commissions for land use decisions may suggest that defendants rarely seek to claim such
immunity.
4
municipalities, and the risk of threats and harassment is great.” Id. at 325. The Ninth
Circuit has similarly granted quasi-judicial immunity to members of a state (rather than
local) growth management hearing board for its rulings on zoning appeals. See Buckles
v. King Cty., 191 F.3d 1127, 1136 (9th Cir. 1999).4
On the other hand, the Ninth Circuit has held that state land conservation and
development commissioners did not act in a judicial capacity under Butz when they
issued an order that resulted in property being rezoned. See Zamsky v. Hansell, 933
F.2d 677, 679 (9th Cir. 1991). Additionally, the First Circuit refused to recognize judicial
immunity for town planning board members for their imposition of conditions on the
development of a proposed subdivision. See Cutting v. Muzzey, 724 F.2d 259, 262 (1st
Cir. 1984). The Fifth Circuit has also refused to recognize quasi-judicial immunity for
city council members for their denial of a land development plan application. See Da
Vinci Inv., Ltd. P’ship v. Parker, 622 F. App’x 367, 374 (5th Cir. 2015).
IV.
DISCUSSION
The court will first address the Cleavinger factors individually. In reaching a
decision, however, this court will consider the relative importance of each factor in the
context of the case.
A. Need to assure that the individual can perform his functions without
harassment or intimidation
While it is axiomatic that no one relishes the prospect of being sued, this factor
focuses on whether absolute immunity is required to assure HDC members that they
can perform their duties without fear of harassment or intimidation. Both Hillman and
4 It bears noting that the Buckles decision involved a board explicitly referred to in a state statute
as “quasi-judicial.” See id. at 1133.
5
Crawford have stated, under oath, that being sued by the Chabad has impacted their
performance on the HDC. See Affidavit of Glenn Hillman ¶¶ 15-17 (Doc. No. 229 App.
GG) (“Hillman Aff.”); Affidavit of Kathleen Crawford ¶¶ 8, 10 (Doc. No. 229 App. HH)
(“Crawford Aff.”). Additionally, Leon Losee, the Warden of the Borough of Litchfield,
attests that, since the commencement of this lawsuit, the Board of Warden and
Burgesses, which is the body responsible for appointing HDC members, has had a
significantly more difficult time filling vacancies on the HDC. See Affidavit of Leone
Losee ¶¶ 6-8, 10 (Doc. No. 229 App. FF) (“Losee Aff.”). Although the Chabad does not
dispute these assertions, the fact remains that these statements are somewhat
conclusory. For example, Warden Losee does not provide the rate of declination or
absolute number of declinations, before and after the commencement of this lawsuit.
See id. Furthermore, the record reflects that Hillman and Crawford did not resign after
the commencement of this lawsuit but rather, continued to serve. See Hillman Aff. ¶ 1;
Crawford Aff. ¶ 1.
The record also contains other uncontested facts that evidence that HDC
members will be able to serve without fear of harassment or intimidation, even without
the benefit of absolute immunity. It is undisputed that, “[a]fter hundreds of applications,
this case is the only [one] identified in which any members of the [HDC] have been
sued.” Memorandum in Opposition to Individuals’ Motion for Summary Judgment Dated
February 24, 2016 at 8 (Doc. No. 230) (“Pls.’ Mem. in Opp’n”). The fact that, historically
speaking, applicants before the HDC do not resort to suing individual HDC members as
a result of an adverse decision by the HDC militates against the conclusion that
absolute immunity is required to shield HDC members from harassment and
6
intimidation. For example, in Cleavinger, the Supreme Court denied members of a
federal prison’s Institution Discipline Committee quasi-judicial absolute immunity despite
acknowledging “that many inmates do not refrain from harassment and intimidation,” as
evidenced by “[t]he number of nonmeritorious prisoners’ cases that come to this Court’s
notice.” Cleavinger, 474 U.S. at 502. However, in Tulloch, the court concluded that this
factor weighed in favor of granting a state prison disciplinary officer quasi-judicial
absolute immunity because “[p]rison disciplinary hearings are often fraught with emotion
and ill-will, and prisoners are a group prone to litigation.” Tulloch, 50 F.3d at 116.
Similarly, in Young v. Selsky, the court noted, in connection with this factor, that, “the
plaintiff in this case has abused the district court’s resources in the past by engaging in
a pattern of vexatious litigation. Such inmates, if unchecked, could seriously undermine
defendant’s ability to function as an independent reviewer.” Young v. Selsky, 41 F.3d
47, 53 (2d Cir. 1994). As already noted, these cases are easily distinguishable from the
case at bar because there is nothing to suggest that HDC applicants are a “group prone
to litigation,” see Tulloch, 50 F.3d at 116, or a group that tends to engage in “a pattern
of vexatious litigation,” see Young, 41 F.3d at 53. Indeed, the fact that the Chabad’s
case has survived an appeal to the Second Circuit and a motion for summary judgment
in this court after the case was remanded indicates that, while the Chabad may not
ultimately prevail, its claims are not unmeritorious and this litigation is certainly not
vexatious.5
5 It bears noting that in Cleavinger, Tulloch, and Young, the defendants’ claims for quasi-judicial
absolute immunity were denied. Thus, while a high volume of unmeritorious cases does not guarantee
that a defendant will be granted quasi-judicial absolute immunity, a small number of suits would certainly
militate against granting a defendant such immunity. This court is aware of only one other reported case
in which members of a local land use board or commission in Connecticut were sued under RLUIPA in
their individual capacities. See Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 344–45 (2d Cir.
7
Even without absolute immunity, HDC members will still benefit from the qualified
immunity generally afforded to administrative officials. See Harlow, 457 U.S. at 807.
For example, this court has previously granted qualified immunity to members of a
zoning board of appeals in connection with its authority to grant certain variances. See
Wiltzius v. Town of New Milford, 453 F. Supp. 2d 421, 432 (D. Conn. 2006).
Additionally, certain protections afforded to HDC members undermine the
defendants’ claim that, absent absolute immunity, they cannot perform their functions on
the HDC without being harassed or intimidated. As the defendants alluded to in their
briefing and clarified at oral argument, if both the municipal defendants and the
individual defendants are found liable on either the Chabad’s substantial burden or
nondiscrimination claim, the municipal defendants will pay the joint-and-several
judgment. See Individual Defendants’ Memorandum of Law in Support of Their Motion
for Summary Judgment at 2 (Doc. No. 229-1) (“Defs.’ Mem. in Supp.”) (“payment of any
judgment [against an individual HDC member] is backed by the full faith and credit of
the Borough”). Thus, the individual defendants will only be responsible for paying a
judgment against them if both (1) that judgment is entered only against them and not
also against the municipal defendants and (2) as discussed below, the Borough does
not fully indemnify them.
Under Second Circuit law, an indemnification arrangement weighs against finding
absolute immunity to be necessary as a means to avoid harassment and intimidation.
See Young, 41 F.3d at 52 (in discussing factor of need to avoid harassment and
intimidation, explaining that lawsuits do not drain the defendant’s financial resources
2005).
8
because of indemnification).6 Here, pursuant to Connecticut state statute, the individual
defendants have not so far had to pay for any of their legal costs. See C.G.S.A. § 7101a(a) (“Each municipality shall protect and save harmless any municipal officer,
whether elected or appointed, of any board, committee, council, agency or commission
. . . from financial loss and expense, including legal fees and costs, if any, arising out of
any claim, demand, suit or judgment . . . for alleged infringement of any person’s civil
rights, on the part of such officer or such employee while acting in the discharge of his
duties”). Additionally, even if the individual defendants are found liable on the Chabad’s
substantial burden claim, they will not be required to pay the judgment against them, nor
will they be required to reimburse the Borough of Litchfield for their legal expenses.
Only if the individual defendants are found liable on the Chabad’s nondiscrimination
claim will they have to pay the judgment against them and reimburse the Borough for
the cost of their legal fees, see C.G.S.A. § 7-101a(b),7 because such an outcome would
mean that the individual defendants had intended to discriminate, see Chabad
Lubavitch of Litchfield Cty. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198 (2d
Cir. 2014). Section 7-101a(b) does not indemnify for intentional wrongs. See Wilson v.
City of Norwich, 507 F. Supp. 2d 199, 212–13 (D. Conn. 2007); Charron v. Town of
Griswold, No. 5000849, 2006 WL 3833843, at *6 (Conn. Super. Ct. Dec. 12, 2006).
The fact that HDC members do not need to fund their own defenses, and will not
need to pay any judgment against them if either that judgment is joint-and-several with
6 Second Circuit law differs in this respect from the law applied in Buckles, where the Ninth Circuit
treated an indemnification arrangement as irrelevant. See Buckles, 191 F.3d at 1136.
“In the event such officer or employee has a judgment entered against him for a malicious,
wanton or wilful act in a court of law, such municipality shall be reimbursed by such officer or employee
for expenses it incurred in providing such defense and shall not be held liable to such officer and
employee for any financial loss or expense resulting from such act.” C.G.S.A. § 7-101a(b).
7
9
the Borough or they are indemnified, undercuts the defendants’ argument that, absent
absolute immunity, they will be incapable of performing their functions without
harassment and intimidation. See Cleavinger, 474 U.S. at 208 (noting, in connection
with this factor, that, “any expense of litigation largely is alleviated by the fact that a
Government official who finds himself as a defendant in litigation of this kind is often
represented, as in this case, by Government counsel. If the problem becomes acute,
the Government has alternatives available to it: it might decide to indemnify the
defendant official”); Tulloch, 50 F.3d at 117 (quoting the above-quoted passage from
Cleavinger).
The court does not doubt that Hillman and Crawford have been inconvenienced
by this lawsuit, which is now nearly seven years old. Further, the court is cognizant of
the fact that HDC members might suffer reputational harm as a result of being sued,
regardless of whether they are ultimately vindicated. However, the cases discussing
this factor do not focus on the inconvenience or reputational effect of being sued.
Rather, they speak about whether the number of suits is so high as to be harassing,
whether the suits tend to be unmeritorious or vexatious, and whether the costs of being
sued – both the cost of funding a defense and the potential cost of satisfying a judgment
– is so great as to be intimidating. Because this is the first time that individual HDC
members have been sued for damages; because this one suit is not unmeritorious or
vexatious, and there is no pattern of vexatious litigation generally; and because the
individual defendants are not paying for their defense and may not even pay a judgment
that is entered against them, the court concludes that this factor strongly militates
against granting the defendants absolute immunity.
10
B. Presence of safeguards that reduce the need for private damages
actions as a means of controlling unconstitutional conduct
The second factor – discussed for the first time in Butz and codified as a factor in
Cleavinger – presents the court with a broad inquiry that, to a certain degree,
encompasses the next four factors. For example, in Butz, the court announced what
has become the second factor and then immediately identified the next four factors as
examples of procedural safeguards. See Butz, 438 U.S. at 512 (“At the same time, the
safeguards built into the judicial process tend to reduce the need for private damages
actions as a means of controlling unconstitutional conduct. The insulation of the judge
from political influence, the importance of precedent in resolving controversies, the
adversary nature of the process, and the correctability of error on appeal are just a few
of the many checks on malicious action by judges”).
Aside from the availability of appeal,8 the application process for a certificate of
appropriateness is accompanied by other procedural safeguards. For example, the
HDC is legally required to hold a public hearing on all applications for certificates of
appropriateness. See C.G.S.A. § 7-147e(a). These public hearings must, by law, “be
recorded by a sound recording device or other appropriate means.” See Administrative
Regulations and Procedures for Borough of Litchfield Historic District Commission at 9
(Doc. No. 187-10) (“Litchfield Admin. Regs.”). Additionally, if the HDC denies an
application, it must “place upon its records and in the notice to the applicant the reasons
8
The defendants, in their discussion of this factor, note that all applicants have the right to appeal
an HDC decision pursuant to section 7-147i of the Connecticut General Statutes. See Defs.’ Mem. in
Supp. at 19. The Chabad, in its discussion of this factor, argues that the appeal available under section
7-147i is insufficient for a number of reasons. The court notes that there is a distinct factor that
addresses the correctability of error on appeal and, as such, the court will address both parties’
arguments regarding the availability and sufficiency of the appeal procedure in section IV.F of this Ruling.
11
for its determination, which shall include the bases for its conclusion that the proposed
activity would not be appropriate.” C.G.S.A. § 7-147e(b).
A public proceeding on a record can serve as a check on malicious or wrongful
conduct by commission members, and this militates in favor of granting the defendants
absolute immunity. See Butz, 438 U.S. at 513 (noting, in support of its finding that
absolute immunity was warranted, that, “[t]he parties are entitled to know the findings
and conclusions on all of the issues of fact, law, or discretion presented on the record”);
see also Mitchell v. Fishbein, 377 F.3d 157, 173 (2d Cir. 2004) (fact that “[t]here is no
requirement for a formal hearing” related to an attorney’s application to become certified
to represent indigent litigants, no “recordation of statements by witnesses or the
applicant,” and no “requirement that the Committee reveal the reasons for its decisions”
militates against granting absolute immunity); see also Young, 41 F.3d at 53 (“access to
a verbatim transcript” constitutes a procedural safeguard under this factor).
As a further procedural safeguard, applicants are permitted to introduce both oral
and documentary testimony in support of an application, both of which the Chabad did
in support of its application. At the public hearing, the HDC must afford both proponents
and opponents of a proposal equal opportunity to present comments. See Litchfield
Admin. Regs. at 9. Each side’s presentation is made “in succession without allowing an
intermixture of comments pro or con.” Id. After both sides have made their
presentation, “[b]rief rebuttals may be allowed at the discretion of the Chairman.” Id.
The ability to call witnesses and introduce testimony buttresses the application process
with procedural safeguards akin to those that exist in a court proceeding. See Butz, 438
U.S. at 513 (party’s ability “to present his case by oral or documentary evidence”
12
constitutes a procedural safeguard); Tulloch, 50 F.3d at 117 (right to “present evidence
and call witnesses” constitutes a procedural safeguard).
In light of the foregoing, the court concludes that the existence of the
aforementioned procedural safeguards in connection with the certificate of
appropriateness application process militates in favor of granting the defendants
absolute immunity.
C. Insulation from political influence
Political influence can be exerted by people other than politicians. HDC
commissioners are members of the local community and, as was the case here, other
members of the community may have strong opinions about an application. The
Eastern District of New York has suggested that the fact of a decision-maker living in
the community about which she or he decides may weigh against finding insulation from
political influence. See Taylor v. Brentwood Union Free Sch. Dist., 908 F. Supp. 1165,
1174 (E.D.N.Y. 1995) (finding school district disciplinary hearing panel members
insulated from political influence in part because “a potential hearing officer is precluded
from service if he or she resides in the school district in which the hearing is taking
place”). Similarly, the Ninth Circuit has suggested that the fact of all board members
living in the same county could weigh against finding insulation. See Buckles, 191 F.3d
at 1134 (finding state board members insulated in part because “no more than two [ ]of
the three[ ] members may . . . reside in the same county”).
In this case, numerous members of the public attended the public hearings to
speak out in opposition to the Chabad’s application. As the Second Circuit noted, one
HDC member even urged “that ‘[w]e have to get the public out on this project for the
public hearing.’” Chabad, 768 at 189. The court would be blinding itself to the practical
13
realities of local government if it were to ignore the possibility that HDC commissioners
could be pressured or unduly influenced by the vociferous opinions of their fellow
community members: As mentioned above, see p. 3–4, supra, a district court in this
Circuit has treated the fact that a zoning hearing was intended partially to assess public
opinion as a reason not to grant quasi-judicial immunity. See Altaire, 551 F. Supp. at
1072. Furthermore, it bears noting that political influence from members of the public
may be especially strong in a small community such as the Borough of Litchfield.9
HDC commissioners are appointed by the Borough of Litchfield’s Board of
Warden and Burgesses. See Litchfield Code § 12-4(E) (Doc. No. 229 App. GG).10
HDC commissioners do not enjoy the insulation from political influence that comes from
lifetime or long-term tenure. Once appointed, a commissioner is entitled to serve, by
law, for a term of either five years (regular members) or three years (alternates). See
id. § 12-4(C). That said, there is no indication that HDC commissioners can be
removed at will by members of the Board of Warden and Burgesses, and the fact that
commissioners are entitled to serve at least three or five years is somewhat suggestive
of the fact that they are not removable at will. See DiBlasio v. Novello, 344 F.3d 292,
298 (2d Cir. 2003) (assuming, in part because the health commissioner was entitled to
serve a finite term, “that the commissioner is not removable at will [by the governor] and
This court takes judicial notice of the fact that the United States Census Bureau’s American
Community Survey 2014 population estimate for Litchfield Borough is only 1,430 people.
9
10
Although appointments to the HDC are, by law, made by the Board of Warden and Burgesses,
the Warden of the Borough of Litchfield has stated, under oath, that, “[w]hen there is a vacancy on the
HDC, usually the HDC recommends someone to be appointed” and the Board of Warden and Burgesses
“give[s] great weight to any person that the HDC does suggest.” Losee Aff. ¶ 4. The fact that many HDC
appointments come at the suggestion of the HDC, and the fact that the Board of Warden and Burgesses
gives such weight to the HDC’s recommendations, suggests that the Board plays a smaller role in
appointing HDC members than the letter of the law might suggest.
14
that such insulation from political influence weighs in favor of a grant of absolute
immunity”); see also Tulloch, 50 F.3d at 117 (Department of Correctional Services’
“control over the hearing officers’ terms of employment” undermines the officers’
insulation from political influence). The members may, however, be reappointed. See
Litchfield Code § 12-4(C). The lack of lifetime or long-term appointment combined with
the availability of re-appointment suggests that a commissioner may make decisions
with an eye to his or her reappointment.11
Hillman has stated, under oath, that in his 14-plus years of service on the HDC,
he has “never been approached or pressured by any public official on any application,”
nor is he aware of this having happened to any other HDC member. Hillman Aff. ¶ 18.
The court accepts that Hillman has been forthright in making this statement, especially
in light of the fact that the Chabad has not produced any evidence of a public official
pressuring an HDC member. That said, political pressure could take the form of a
commissioner being approached or pressured by community members other than public
officials. The Dotzel and Buckles decisions found insulation in part because ex parte
communication with board members was prohibited. See Dotzel, 438 F.3d at 327;
Buckles, 191 F.3d at 1134. Here, however, “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.” Chabad Lubavitch of Litchfield Cty., Inc. v.
Borough of Litchfield, No. 3:09-CV-1419 (JCH), 2016 WL 370696, at *20 (D. Conn. Jan.
27, 2016). Political pressure could also take the less-overt form of a commissioner
This court also notes that the HDC commissioners’ three-to-five year tenure is less than the sixyear tenure of the board members whom the Ninth Circuit found to be insulated from political influence in
Buckles. See 191 F.3d at 1134.
11
15
simply knowing that a certain decision would help the commissioner to garner favor with
a public official or with the community. For example, the Ninth Circuit found insulation in
Buckles in part because board members were prohibited from running for or holding any
public office. See 191 F.3d at 1134. The defendants have not presented evidence of a
comparable prohibition here. Under state law, historic district commissioners are
prohibited from holding a “salaried municipal office,” see C.G.S.A. § 7-147c(d), but
Borough of Litchfield officers generally serve without pay, see Losee Aff. ¶ 2.
Based on the foregoing, the court concludes that this factor militates against a
finding of absolute immunity.
D. Importance of precedent
If a decision-making body uses precedent, and if that precedent is important to
the decision-making process and to the validity of a decision, then the precedent factor
would tend to support a finding of judicial immunity. Here, to the extent that the
defendants argue that the HDC relies on precedent, the defendants refer not to
“precedent” in the sense that a court uses the term to mean public decisions maintained
in a system enabling easy future reference, but rather, simply to the limited group of
decisions made by the agency.12
Furthermore, the Chabad accurately asserts that, “[t]here is no binding precedent
that an unsuccessful applicant can apply to challenge a decision of the agency.” Pls.’
Mem. in Opp’n at 12. The defendants conceded at oral argument that there is no
The court’s experience is that records of HDC’s past decisions do not always seem to be easy
to find. As this court has noted, “Borough defendants assert that there is no public record of the HDC
permitting an addition onto the Rose Haven Home, although it concedes that it appears from the
assessor’s card that ‘at some point there was a small addition added to the main house.’” Chabad
Lubavitch of Litchfield Cty., Inc. v. Borough of Litchfield, Conn., 853 F. Supp. 2d 214, 227 (D. Conn.
2012).
12
16
statute or Borough regulation that mandates that the HDC follow its own precedent.
The defendants argued that if, in denying an application, the HDC were to ignore a prior
decision that allowed a different applicant to make a similar modification, the aggrieved
applicant would have a strong case on appeal to the Superior Court that the HDC’s
decision was arbitrary.
However, such an argument ignores the fact that each HDC application is
evaluated on a case-by-case basis, and there is almost certainly always a way to
distinguish one application from another. See, e.g., Chabad, 768 F.3d at 194 (“Were
there any doubt as to the type of assessment at issue, even a cursory review of the
HDC’s consideration of the Chabad’s application confirms that the process was patently
individualized.”). Indeed, as the Court of Appeals noted, RLUIPA exists precisely to
combat the “subtle forms of discrimination” that may result when, as here, local boards
are granted “essentially standardless discretion” to conduct “case-by-case evaluation[s]”
of land use applications, as such discretion carries “the concomitant risk of idiosyncratic
application of land use standards that may permit (and conceal) potentially
discriminatory denials.” Id. at 193 (internal quotation marks omitted). Here, the
statutory scheme requires commissioners only to implement a “general rule by applying
loosely defined and subjective standards:” Id. at 194. Commissioners must determine
whether a proposal is “’appropriate,’” a term involving “’historical and architectural value
and significance,’” “’architectural style, scale, general design, arrangement, texture, and
material,’” “’relationship’” to the neighborhood, and “’any other pertinent factors.’” Id. at
194. In the case of the Chabad’s application, “the HDC conducted this inquiry without
the guidance of laws or regulations that dictated the specific metes and bounds either of
17
its inquiry or of the conditions it imposed.” Id. at 194. This lack of concrete rules may
set a historic district commission’s work in evaluating “appropriateness” apart from
typical zoning board work, which would more often involve the application of
particularlized rules.
The HDC’s written opinion denying the Chabad’s application indicates that the
HDC, in reaching a decision on the Chabad’s application, did attempt to follow
precedents established by prior court cases and considered the HDC’s prior decisions.
In attempting to render a decision that avoided infringing on the Chabad’s RLUIPA
rights, the HDC noted in its opinion its reliance on McCreary County v. American Civil
Liberties Union, 545 U.S. 844 (2005), Cutter v. Wilkinson, 544 U.S. 709 (2005), and
Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007), which
was decided shortly before the HDC’s decision. See HDC Decision at 12 (Doc. No.
187-16). See also Tulloch, 50 F.3d at 117; Young, 41 F.3d at 53 (both discussing, in
connection with this factor, whether the administrative body looked to prior case law and
administrative precedent). However, the HDC is not required to be comprised of
lawyers or others with expertise in interpreting case law. See Litchfield Code § 12-4(B).
The HDC said it referred to its prior decisions in order to render a decision on the
Chabad’s application that it viewed was consistent with the HDC’s prior decisions. For
example, the HDC noted that, because an earlier iteration of the HDC had permitted the
Cramer and Anderson law firm to erect an addition to a residential property that was
equal in size to the original structure, the HDC would allow the Chabad to erect an
addition that was equal in size to the original 85 West Street structure. See HDC
Decision at 14. This use of “precedent” failed, however, to take into consideration the
18
differences between these two properties, which differences might suggest allowing the
same size addition was not appropriate. Further, to aid in its efforts to adhere to its own
precedent, the HDC maintains “comprehensive files of earlier decisions,” as well as
“photos and pertinent documents in the files which more accurately depict [the HDC’s]
decisions than would a copy of the decision alone.” Hillman Aff. ¶ 10. However, such
files do not appear to be fully accurate, or organized for easy research.13 See Tulloch,
50 F.3d at 117 (fact that “there appear to be no compendiums of the records of
disciplinary hearings and appeals for officers to rely on” militates against granting
absolute immunity).
While it may appear that in this case the HDC made an attempt to adhere to its
“precedents” in rendering a decision, the lack of any official requirement that this or
other historic district commissions adhere to precedent, and the ease with which a
historic district commission can distinguish one application from another, or fail to
distinguish one application from another, creates a serious risk that granting HDC
commissioners absolute immunity will undermine the purpose of RLUIPA and create an
environment in which commissioners can perpetuate “subtle forms of discrimination.”
The Third Circuit has interpreted the Butz precedent factor broadly to ask whether
decision-making is “constrained by outside law,” including statutory law, rather than
“purely discretionary.” See Dotzel, 438 F.3d at 326–27 (noting approvingly that board
was “required by statute to consider in its deliberations the land-use standards set out in
the relevant zoning ordinance, and to explain its reasoning in written opinions”). Here,
the loosely defined and subjective standards that the HDC applies weigh against finding
13 See
footnote 12.
19
sufficient constraint by statutory law so as to satisfy the precedent factor. Accordingly,
the court concludes that this factor militates against granting the defendants absolute
immunity.
E. Adversary nature of the process
In arguing that the hearing process for the Chabad’s application was adversarial,
the defendants note that numerous “adversarial reports and letters” were submitted and
there were “three nights of adversarial testimony at the public hearings.” Defs.’ Mem. in
Supp. at 21. Some examples of these “adversarial reports and letters” include: (1) a
letter from the HDC’s lawyer to the HDC providing guidance on RLUIPA, see Letter from
James Stedronsky (Doc. No. 187-6); (2) a letter from one of the Chabad’s lawyers to the
HDC, see Letter from Dwight Merriam (Doc. No. 205-33); and, (3) a written evaluation of
the Chabad’s proposed renovations by John Herzan, an architectural historian hired by
the HDC’s lawyer to author an “independent evaluation of the appropriateness of
architectural work” proposed by the Chabad, see Evaluation of Proposed Renovations
to 85 West Street (Doc. No. 210-1). However, when the Second Circuit cases
interpreting Butz and Cleavinger discuss whether the proceeding in question was
adversarial in nature, they are using the word “adversarial” as a term of art to refer to
such protections as, inter alia, the right to counsel, the right to cross-examine witnesses,
and the existence of evidentiary rules. See, e.g., DiBlasio, 344 F.3d at 299; Tulloch, 50
F.3d at 117; Young, 41 F.3d at 53.14
Although there is no statutory right to be represented by counsel at HDC
14
This court notes that the Ninth Circuit in Buckles, however, appears to have applied this
adversary nature factor in a manner different than that in which the Second Circuit applies this factor.
See Buckles, 191 F.3d at 1134 (finding “little doubt that the proceeding was an adversarial one” solely
because parties “took dramatically polar positions”).
20
hearings, in this case the Chabad was represented by counsel since the early stages of
the hearing process. An applicant’s ability to be represented by counsel adds to the
adversarial nature of the certificate of appropriateness application process. See
Tulloch, 50 F.3d at 117 (“absence of counsel to help focus inquiry and present reasoned
proofs and arguments precludes the development of a full adversarial process”); Young,
41 F.3d at 54 (proceedings in question not adversarial in part because “[p]risoners have
no right to counsel in either proceeding”).
On the other hand, the court finds it quite significant that there is no evidence in
the record that the Chabad had the right to cross-examine adverse witnesses, and its
ability to challenge evidence was limited to rebuttal. See Young, 41 F.3d at 53 (fact that
“rights [of prisoners appearing before disciplinary board] to cross-examine and
challenge witnesses and evidence are limited” militates against concluding that such
hearings are adversarial); see also Dotzel, 438 F.3d at 327 (finding the process
adversarial in part due to the availability of cross-examination). The ability to crossexamine witnesses is one of the hallmarks of an adversarial proceeding, and the
apparent inability for HDC applicants to cross-examine those who speak out in
opposition of an application counsels strongly against a grant of absolute immunity.
The record is also devoid of evidence that the HDC’s hearings are governed by
“evidentiary rules.” At oral argument, the defendants conceded that HDC proceedings
are not governed by any set of evidentiary rules. See DiBlasio, 344 F.3d at 299 (“Even
though physicians are permitted to have an attorney present at the [medical license
suspension] interview, and are allowed to present countervailing evidence, the
interviews lack key elements of an adversarial proceeding, such as a neutral decision
21
maker and evidentiary rules”). The lack of evidentiary rules distinguishes the situation
here from that in Buckles, where the proceedings used “the Washington rules of
evidence as a non-binding guide,” see Buckles, 191 F.3d at 1135, and from that in
Dotzel, where an ordinance allows parties to challenge proffered evidence, see Dotzel,
438 F.3d at 327.
The lack of “evidentiary rules” is evidenced in the lack of procedures available to
applicants to challenge the qualifications of experts that the HDC hires to provide
guidance on the issue at hand. At the October 18, 2007 hearing, the HDC decided to
hire Mr. Herzan, an architectural historian, to opine on the historical appropriateness of
the Chabad’s proposed modifications. See October 18, 2007 Meeting Minutes at 4
(Doc. No. 187-28) (“Oct. 18 Minutes”). At that same meeting, one of the Chabad’s
attorneys requested that he be able to review any consultant’s report prior to that report
being discussed at a meeting. See id. at 3. The HDC, through its attorney, responded
that the HDC “will try to accommodate the request.” Id.15 The HDC hearings do not
contain any procedures that provide a party the right to challenge the qualifications and
the report of a purported expert. This lack of procedure stands in stark contrast with the
procedures that exist in court for ensuring that a proposed expert is, indeed, qualified to
testify as an expert, and for ensuring that the opposing party has the opportunity to read
and challenge the expert’s report prior to the expert testifying. While such fulsome rules
may not be called for at the HDC, some process to permit challenge to the qualification
and opinion of an expert would seem part of an “adversarial” process.
15 The record does not reveal whether the Chabad was able to review Mr. Herzan’s report prior to
when it was presented on December 6, 2007.
22
The lack of evidentiary rules governing the HDC hearings is particularly
problematic given one of the Chabad’s attorney’s sworn declaration that, “[a]t various
points during the administrative hearing process,” the HDC, through its attorney,
“attempted to prevent Plaintiffs from submitting relevant documents and to delete or
remove documents already submitted and marked as exhibits from the administrative
record.” Declaration of Gillian Bearns ¶ 20 (Doc. No. 205-35).
In consideration of the foregoing, particularly the lack of cross-examination and
evidentiary rules, the court concludes that this factor militates strongly against a finding
of absolute immunity.
F. Correctability of error on appeal
Pursuant to section 7-147i of the Connecticut General Statutes, HDC decisions
are appealable to the Superior Court of Connecticut. See C.G.S.A. § 7-147i. The
Chabad argues that the limited nature of such appeals renders them incapable of
providing sufficient protection to aggrieved parties, such that permitting an aggrieved
party to sue individuals for damages is necessary. The court concludes that it is unclear
whether the Chabad would have been able to pursue its RLUIPA claim on appeal from
the HDC decision.
Correctability on appeal refers to the plaintiff’s “opportunity to challenge the
legality of the proceeding,” including, for instance, the proceeding’s comportment with
the Constitution. See Butz, 438 U.S. at 515–16. There appears to be a split of authority
as to whether the Superior Court can decide, as a matter of first impression on an
appeal from an HDC decision, whether that decision violated the applicant’s statutory or
constitutional rights.
Courts have sometimes rejected a plaintiff’s attempt to append a statutory or
23
constitutional claim to an administrative appeal. In Dan Beard, Inc. v. Orange Town
Plan and Zoning Com’n, the court stated that, “[i]t is clear that an adjudication of the
plaintiff’s § 1983 claim and an award of the monetary relief requested pursuant to that
claim are outside both the court’s scope of review and its authority to grant relief in an
appeal from decisions of a planning and zoning commission brought pursuant
to General Statutes § 8-8.” Dan Beard, Inc. v. Orange Town Plan and Zoning Com’n,
No. CV92038750S, 1992 WL 175075, at *3 (Conn. Super. Ct. July 16, 1992). In
Murphy v. City of Stamford, the court reached the same result. See Murphy v. City of
Stamford, No. FSTCV145014274S, 2015 WL 493518, at *4 (Conn. Super. Ct. Jan. 12,
2015) (collecting cases). In Murphy, the court’s decision was based on the fact that “the
differences in the procedure and scope of review” between administrative appeals and
civil actions render joinder of two types of actions “improper.” Id. at *4.
However, in the zoning appeal case Cambodian Buddhist Society, the Superior
Court engaged in a lengthy analysis of whether the plaintiffs’ RLUIPA rights had been
violated. See Cambodian Buddhist Soc’y of CT., Inc. v. Newtown Planning and Zoning
Comm’n, No. CV030350572S, 2005 WL 3370834, at *5–15 (Conn. Super. Ct. Nov. 18,
2005). The court’s decision to adjudicate the plaintiff’s RLUIPA claim in what was,
originally, an administrative appeal, was motivated by its view of judicial economy. As
the court stated at an earlier point in the proceedings: “[i]nstead of forcing the [S]ociety
to initiate a separate action to pursue its statutory and constitutional claims, the court,
exercising its discretion under the factual circumstances of the appeal before it, finds
that it should hear additional evidence during the appeal in order to advance judicial
economy and gain further testimony for the equitable disposition of the appeal.”
24
Cambodian Buddhist Soc’y of CT., Inc. v. Newtown Planning and Zoning Comm’n, No.
CV030348578S, 2005 WL 1433842, at *4 (Conn. Super. Ct. May 25, 2005).16
The Chabad also argues that the appeals process is insufficient in part because
“[t]he court is limited to the record compiled during the administrative proceeding.” Pls.’
Mem. in Opp’n. at 10. Generally speaking, this assertion may be correct because “[a]n
appeal from an administrative tribunal should ordinarily be determined on the record
made before that tribunal.” See Gevers v. Planning & Zoning Comm’n of Town of N.
Canaan, 94 Conn. App. 478, 489 (2006) (citing Beach v. Planning & Zoning Comm'n of
Town of Milford, 141 Conn. 79, 79, 103 A.2d 814, 815 (1954)). However, pursuant to
section 8-8(k) of the Connecticut General Statutes, the reviewing court “shall allow any
party to introduce evidence in addition to the contents of the [administrative] record if (1)
the record does not contain a complete transcript of the entire proceedings before the
board . . . or (2) it appears to the court that additional testimony is necessary for the
equitable disposition of the appeal.” C.G.S.A. § 8-8(k). In Cambodian Buddhist Soc’y,
2005 WL 3370834, at *3, a case in which the plaintiff appealed a zoning board’s denial
of a special exception and argued, inter alia, that the denial violated RLUIPA, the
Superior Court allowed the plaintiff, pursuant to section 8-8(k), to expand the record to
present additional evidence relevant to the plaintiff’s RLUIPA claim.
The Chabad also argues that the appeals process is insufficient because the
Superior Court can only decide whether the administrative agency acted “arbitrarily,
Although the Superior Court’s ultimate decision that the plaintiff’s RLUIPA rights had not been
violated was affirmed by the Supreme Court of Connecticut, the Connecticut Supreme Court did not
directly address the question of whether it was appropriate for the Superior Court as a matter of first
impression, to adjudicate the plaintiff’s RLUIPA claim in what was, originally, an administrative appeal.
See Cambodian Buddhist Soc. Of Connecticut, Inc. v. Planning and Zoning Com’n of Town of Newton,
285 Conn. 381 (2008).
16
25
illegally or unreasonably,” which limitation does not “permit the court, by trial de novo, to
substitute its findings and conclusions for the decision of the board.” Pls.’ Mem. in
Opp’n at 9. While the Chabad is correct that the Superior Court cannot readjudicate, de
novo, whether the Chabad should have been granted a certificate of approval, see WilNor Corp. v. Zoning Bd. of Appeals of City of Norwalk, 146 Conn. 27, 30 (1958), the
Chabad’s argument misses the point. The Chabad is suing the Borough of Litchfield
and the individual defendants not on the basis that they simply reached the wrong
conclusion on the question of whether the Chabad’s application should have been
approved under Connecticut law. Rather, the Chabad is suing the defendants for
violating its RLUIPA rights. Accordingly, the “error” that the court is concerned with is
the defendants’ potential violation of the Chabad’s RLUIPA rights. Given that this is the
“error” that the court is concerned with, this factor in the absolute immunity test asks
whether this “error” – the violation of the Chabad’s RLUIPA rights – is correctible on the
administrative appeal in state court. If the trial court in Cambodian Buddhist Society is
correct, then it is. If the Murphy court is correct, it is not.
Given that it is not clear that the Chabad would be able to vindicate its RLUIPA
rights in an administrative appeal, the court concludes that the correctability of error on
appeal may be limited. Given the uncertainty, the court finds this factor neutral.
V.
CONCLUSION
Four of the factors discussed militate against granting the defendants absolute
immunity, while one militates in favor, and one is neutral, or unclear. Further, the fifth
factor, in which the court discussed the inability of the Chabad to cross-examine
witnesses and the lack of evidentiary standards at the HDC hearings, militates strongly
against granting the defendants absolute immunity. Similarly, the fourth factor, which
26
discussed the importance of precedent and which seems particularly relevant in
RLUIPA cases, militates against granting absolute immunity.
Scrutinizing the responsibilities of the HDC members, and analyzing and
weighing the Cleavinger/Butz factors, the court concludes that this case does not
present the “rare and exceptional” circumstance anticipated by Cleavinger, and
members of the Borough of Litchfield HDC are not entitled to absolute judicial immunity.
Accordingly, for the above-stated reasons, the Individual Defendants’ Motion for
Summary Judgment (Doc. No. 229) is DENIED.
SO ORDERED.
Dated at New Haven, Connecticut this 29th day of September 2016.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
27
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