Connecticut Law Tribune - A Not-So-Simple Matter Of Faith

The scenario has become increasingly common across the country. A congregation presents plans to build a house of worship. A zoning board denies the application, citing concerns ranging from the building’s size to traffic issues.

But the religious group wonders if deep down the denial has more to do with bias against evangelical Christians, Muslims, or Jews. The group files a lawsuit, citing a law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA, which forces communities to have a compelling reason to reject religious facilities.

“There’s a tremendous amount of RLUIPA litigation,” said Patricia Salkin, an associate dean at Albany Law School who has published articles on the federal act. “It seems that whenever a religious organization is denied a permit to build something or enlarge something, there is often a retort to the local government that we’re going to sue you under RLUIPA.”

In Connecticut, RLUIPA cases have involved a Jehovah’s Witnesses hall in Meriden, a proposed Buddhist temple in Newtown and now the proposed expansion of a Jewish center in Litchfield. The latter battle has turned particularly testy, with thinly veiled charges of anti-Semitism.

Litchfield is known for its main streets lined with graceful Colonial-style homes from the 18th and 19th centuries. The downtown area has its own Historic District Commission that ensures that nothing disturbs the ambience.

The town is also home to an Orthodox Jewish group called Chabad Lubavitch of Litchfield County, which is currently housed in a 1,500-square-foot building. The organization purchased a 135-year-old house about a half mile away, and unveiled plans for a 21,000-square-foot addition that would include a synagogue, classrooms, kosher kitchens, and a community center.

The historic commission rejected those plans late in 2007, stating that the sheer size of the addition would overwhelm the historic district. It proposed a compromise that would limit the building to 5,000 square feet.

But Chabad Lubavitch leaders didn’t buy the explanation for the rejection. They pointed to comments that were allegedly made about a Jewish symbol that would have been prominent in the project’s design. Rabbi Joseph Eisenbach claims a historic commission member said “there is no place for a Star of David on the Litchfield Green.”

And so, last month, the group filed a federal lawsuit against the historic commission. “The defendants have engaged in a targeted and deliberate effort to prevent the plaintiffs from developing the property and [using] it as a place of worship, while permitting other development within the town that is substantially similar to the modifications proposed for plaintiff’s property,” wrote attorney Kenneth R. Slater, of Halloran & Sage, in the federal complaint. “This targeting has been based in large part on anti-Hasidic animus.”

Shield Or Sword?

RLUIPA was enacted in 2000 to provide stronger protections for religious groups that wanted to build houses of worship or prison inmates who wanted to practice their faiths. Since then, municipal officials have complained that it’s stopped them from making zoning decisions that are best for their towns, and has exposed them to costly litigation.

“The intention was to provide a shield for religious organizations to go in without discrimination,” said attorney Steven M. Silverberg, of Silverberg Zalantis LLP, with offices in Stamford and White Plains, NY. “The motivation was a good one but what happened really is it became a sword — religious groups coming in and pushing the parameters of what’s appropriate in a community.”

Silverberg, who represents municipalities in RLUIPA matters, said few cases go to trial. “You see a lot of cases settled because if [the municipalities] fight it they could really get hit… You can wind up in millions of dollars of legal fees.”

Winning a RLUIPA suit is no slam dunk for either side. Religious groups must prove that governments have imposed or implemented land use regulations that cause a “substantial burden” to free exercise of religion. If the religious group can prove that point, then the municipality has to demonstrate its compelling interest in rejecting the plans of the religious group.

A Washington, D.C., public interest group, the Becket Fund For Religious Liberty, helps religious groups make use of the RLUIPA. Becket attorney Lori Windham said when towns reject plans for religious buildings, they often cite the potential for increased traffic, parking problems, or aesthetic concerns as compelling interests. Windham said none of those pass legal muster.

“There’s very little that’s been deemed a government interest,” said Windham. “Safety can be, if there’s a specific safety threat, such as dangerous conditions on the property.”

In Connecticut, the RLUIPA record has been mixed. In 2003, Newtown’s Planning & Zoning Commission denied permission for the Cambodian Buddhist Society of America to build a temple on 10 acres in the Fairfield County town.

Town officials noted that the proposed temple could attract 450 people for some ceremonies. They said the volume of cars and noise that would bring to a residential area would be “far too intense.” There were also concerns about sanitation, wetlands and the safety of a narrow road that led to the property.

The Buddhist group, which cited state laws as well as RLUIPA, appealed the zoning decision all the way to the state Supreme Court. The justices sided with Newtown, saying officials had acted on “neutral concerns” about public safety rather than religious bias.

The city of Meriden was less successful in its encounter with a congregation of Jehovah’s Witnesses. The city’s Zoning Board of Appeals denied an application to build a house of worship, known as a Kingdom Hall. Officials had concerns with drainage on the site in question and how increased traffic might affect the nearby neighborhoods.

After the Jehovah’s Witnesses sued, city officials ultimately settled the case last year, clearing the way for the Kingdom Hall. One zoning board member said the agreement left a bad taste in his mouth and made it appear the city had done something wrong.

But attorney Joseph P. Williams, of Shipman & Goodwin, who represented the Jehovah’s Witnesses, disputes claims that RLUIPA is used to bully municipalities. To the contrary, he said, it stops towns from bowing to religious bias.

“There are some cases where there’s evidence in the record [of zoning hearings] that members of the public have said disparaging things of the people making the application,” he said.

New York Precedent

What does all this mean for Chabbad Lubavitch?

Windham, the Becket Fund lawyer, said the best federal precedent for the Litchfield case is a 2nd Circuit Court of Appeals decision in a New York case, Westchester Day School v. Village of Mamaroneck. There, the village denied an Orthodox Jewish school’s application to expand its facilities. The denial was based mostly upon traffic and parking concerns. After a five-year legal battle, the 2nd Circuit ruled that the village had violated RLUIPA. The village and school settled on damages and attorneys’ fees of $4.75 million.

David S. King, associate dean at Quinnipiac University School of Law, said it doesn’t seem that Litchfield has so far offered a “compelling interest” for denying the Jewish group’s project. “I would say their only interest is historic preservation.”

King noted that, according to the lawsuit, the Litchfield Historic District Commission has approved similar building plans in the district, including expansions of the town hall, public library and churches. “Sounds to me like they’re not treating the Chabad folks on equal terms as they’re required to do under RLUIPA,” King said.

But Salkin, the Albany law professor, who tracks every RLUIPA case nationwide, said that “the vast majority of RLUIPA lawsuits that are brought are not successful.”

She agreed with King that the track record of the Litchfield historic commission in approving projects would be scrutinized. “Are there other buildings of that same size in the same general vicinity not run by a religious [group]?” Salkin asked.

Sara Bronin, a University of Connecticut School of Law professor, opined that Chabad Lubavitch likely filed its RLUIPA lawsuit in federal court to avoid the state Supreme Court and its Buddhist temple precedent.

Still, she said, it’s difficult to predict outcomes even in federal court because RLUIPA lawsuits turn on the specific facts of each case. And she doubts there will be a national case that offers clear guidance any time in the near future.

“Generally,” said Bronin, “the U.S. Supreme Court avoids local land use decision-making issues. So it may be some years before the Supreme Court hears an RLUIPA case.”

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