chabad lubavitch of northwest connecticut appellants' initial brief - 110712 - ecf # 105

7/29/2019 Chabad Lubavitch of Northwest Connecticut Appellants' Initial Brief - 110712 - ECF # 105

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12-1057(L)-cv,

12-1495 (Con)-cv

In The

United States Court of Appealsfor the Second Circuit

CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., andRABBI JOSEPH EISENBACH,

Plaintiffs-Appellants,

v.

BOROUGH OF LITCHFIELD, CONNECTICUT;HISTORIC DISTRICT COMMISSION OF

THE BOROUGH OF LITCHFIELD;

WENDY KUHNE, GLENN HILLMAN AND

KATHLEEN CRAWFORD,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

PAGE PROOF BRIEF FOR PLAINTIFFS-APPELLANTS

Kenneth R. Slater, Jr.

HALLORAN & SAGE LLP

Counsel for Plaintiffs-AppellantsOne Goodwin Square

Hartford, CT 06103-4303

Telephone: (860) 297-4662

Email: [email protected]

Frederick H. Nelson

AMERICAN LIBERTIES INSTITUTE

Counsel for Plaintiffs-Appellants

P.O. Box 547503

Orlando, FL 32854-7503

Telephone: (407) 786-7007

Email: [email protected]

Case: 12-1057 Document: 105 Page: 1 11/07/2012 762299 78


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,

Plaintiffs-Appellants, Chabad Lubavitch of Litchfield County, Inc. (the Chabad),

by its attorneys, certifies the Chabad is a 501(c)(3) corporation and has no parent

corporation nor does any publicly held corporation own stock in the Chabad.

Dated: November 7, 2012

AMERICAN LIBERTIES INSTITUTE

By:

/s/Frederick H. Nelson

Frederick H. Nelson, Esq.

Attorneys for Chabad Lubavitch ofLitchfield County, Inc., and Rabbi Joseph

Eisenbach



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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................ ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES .................................................................................. vii

I. JURISDICTIONAL STATEMENT ..................................................................... 1

II. STATEMENT OF THE ISSUES ......................................................................... 1

III. STATEMENT OF THE CASE ............................................................................ 2

IV. STATEMENT OF FACTS .................................................................................. 3

A. The Chabad and the Rabbi and the Religious Needs ...................................... 3

B. The Propertys Missing Architectural Detail .................................................. 5

C. A Brief History of the Boroughs Other Additions ........................................ 6

1. The Wolcott Library .................................................................................... 7

2. The Rose Haven Home ................................................................................ 8

3. The Cramer and Anderson law firm ............................................................ 9

D. Other Houses of Worship ................................................................................ 9

1. Congregational Church .............................................................................. 10

2. St. Michaels Parish ................................................................................... 11

3. St. Anthony of Padua ................................................................................. 12

4. United Methodist ....................................................................................... 12



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TABLE OF CONTENTS (CONT.)

E. The Regulation of Architecture in the Borough ............................................ 13

F. The Arbitrary History of the HDC ................................................................ 14

G. The Application ............................................................................................. 16

H. The HDC Meets to Discuss the Application ................................................. 17

1. The First Meeting ....................................................................................... 17

2. The Second Meeting .................................................................................. 19

3. The Third Meeting ..................................................................................... 20

4. The Fourth Meeting ................................................................................... 20

I. The HDC Denies the Application ................................................................... 21

V. STANDARD OF REVIEW ............................................................................... 22

VI. SUMMARY OF ARGUMENT ......................................................................... 22

VII. ARGUMENT ................................................................................................... 24

POINT I ............................................................................................................... 24

THE HDC APPLIED AN INDIVIDUALIZED ASSESSMENT TO THE

CHABADS APPLICATION ............................................................................. 24

A. The Law ........................................................................................................ 24

B. The Facts ....................................................................................................... 29

1. Inadequate facilities ................................................................................... 31

2. Arbitrary, Capricious or Unlawful ............................................................. 34

3. Final Decision ............................................................................................ 37



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POINT II ............................................................................................................. 40

THE EQUAL TERMS PROVISION ................................................................. 40

A. The Law ........................................................................................................ 40

B. The Facts ....................................................................................................... 42

1. The Wolcott Library .................................................................................. 43

2. The Rose Haven Home .............................................................................. 47

3. The Cramer and Anderson law firm .......................................................... 49

POINT III ............................................................................................................ 50

THE NONDISCRIMINATION PROVISION ................................................... 50

A. The Law ........................................................................................................ 50

B. The Facts ....................................................................................................... 52

POINT IV ............................................................................................................ 54

EQUAL PROTECTION ..................................................................................... 54

A. The Law ........................................................................................................ 55

B. The Facts ....................................................................................................... 55

POINT V ............................................................................................................. 54

CONSTITUTIONAL CLAIMS .......................................................................... 57

A. Freedom of Speech ........................................................................................ 57

B. Freedom of Association ................................................................................ 57



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C. Due Process ................................................................................................... 58

POINT V ............................................................................................................. 58

ORDER DISMISSING RABBI .......................................................................... 58

A. The Law ........................................................................................................ 58

B. The Facts ....................................................................................................... 59

CONCLUSION ........................................................................................................ 64

CERTIFICATE OF COMPLIANCE ....................................................................... 65

CERTIFICATION OF SERVICE............................................................................ 66



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TABLE OF AUTHORITIES

Cases:

Albanian Associated Fundv. Township of Wayne,No. 06-cv-3217 (PGS),

2007 WL 2904194 (D.N.J. Oct. 1, 2007) .............................................................. 33

Analytical Diagnostic Labs, Inc. v. Kusel,626 F.3d 135 (2d Cir. 2010) ............................................................................. 55, 56

Bizzarro v. Miranda,

394 F.3d 82 (2d Cir. 2005) ..................................................................................... 55

Castle Hills First Baptist Church v. City of Castle Hills,No. 5:01CV01149, 2004 WL 546792 (W.D. Tex. Mar. 17, 2004) ....................... 34

Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield,853 F. Supp. 2d 214 (2012) ..................................................................................... 3

Chahal v. Paine Webber Inc.,

725 F.2d 20 (2d Cir. 1984) ..................................................................................... 62

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,508 U.S. 520 (1993) ................................................................................... 27, 29, 51

Civil Liberties for Urban Believers v. City of Chicago,342 F.3d 752 (7th Cir. 2003) ................................................................................. 40

Columbus Bd. of Ed. v. Penick,443 U.S. 449 (1979) ............................................................................................... 51

Compania Del Bajo Caroni (Caromin), C.A. v. Bolivarian Republic of Venezuela,

341 Fed. Appx. 722 (2d Cir. 2009) ........................................................................ 63

Congregation Kol Ami v.Abington Twp.,No. 01-1919, 2004 WL 1837037 (E.D. Pa. Aug. 17, 2004) amended,

No. 01-1919, 2004 WL 2137819 (E.D. Pa. Sept. 21, 2004) .................................. 34



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TABLE OF AUTHORITIES (CONT.)

Jean v. Nelson,711 F.2d 1455 (11th Cir. 1983) ............................................................................. 51

Jolly v. Coughlin,76 F.3d 468 (2d Cir. 1996) ..................................................................................... 32

Konikov v. Orange Cty, Fla.,

410 F.3d 1323 (11th Cir. 2005) ....................................................................... 29, 41

Lighthouse Institute for Evangelism, Inc. v. City of Long Branch,510 F.3d 253 (3rd Cir. 2007) ................................................................................. 42

Lovelace v. Lee,472 F.3d 174 (4th Cir. 2006) ................................................................................. 32

MacDonald, Sommer & Frates v. Yolo Cty,477 U.S. 340 (1986) ............................................................................................... 28

Marshall v. Kleppe,637 F.2d 1217 (9th Cir. 1980) ............................................................................... 62

Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1225 (11thCir. 2004),

cert. denied, 543 U.S. 1146 (2005) ........................................................................ 28

Mintzv.Roman Catholic Bishop of Springfield,424 F. Supp. 2d 309 (D. Mass. 2006) .................................................................... 33

Natural Res. Def. Council v. Johnson,

461 F.3d 164 (2d Cir. 2006) ................................................................................... 60

Phelps v. Kapnolas,

308 F.3d 180 (2d Cir. 2002) ................................................................................... 60

Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty,450 F.3d 1295 (11th Cir. 2006) ........................................................... 40, 41, 50, 51



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Reaching Hearts International, Inc. v. Prince Georges County,584 F.Supp.2d 766 (D. Maryland 2008) .......................................................... 32, 52

RK Ventures, Inc. v. City of Seattle,

307 F.3d 1045 (9th Cir. 2002) ............................................................................... 63

Robinson v. Overseas Military Sales Corp.,

21 F.3d 502 (2d Cir. 1994) ............................................................................... 22, 61

Rocky Mountain Christian Church v.Board of Cnty. Commrs,613 F.3d 1229 (10th Cir. 2010) ............................................................................. 33

Sts. Constantine & Helen Greek Orthodox Church v. City of New Berlin,396 F.3d 895 (7th Cir. 2005) ..................................................................... 27, 28, 37

San Jose Christian College v. City of Morgan Hill,360 F.3d 1024 (9th Cir. 2004) ............................................................................... 25

Shell Petroleum, N.V. v. Graves,709 F.2d 593 (9th Cir. 1983), cert. denied, 464 U.S. 1012 (1983) ....................... 62

Sherbert v. Verner,374 U.S. 398 (1963) ......................................................................................... 26, 28

Soranno's Gasco, Inc. v. Morgan,

874 F.2d 1310 (9th Cir. 1989) ................................................................... 61, 62, 63

Tanoh v. Dow Chemical Co.,

561 F.3d 945 (9th Cir. 2009) ................................................................................. 42

Thomas v. Review Board of the Indiana Employment,450 U.S. 407 (1981) ............................................................................................... 32

United States v. Board of Commissioners of Indianapolis,573 F.2d 400 (7th Cir. 1978), cert. denied, 439 U.S. 824 (1978) ......................... 51



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Village of Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252 (1977) ............................................................................................... 52

Village of Willowbrook v. Olech,528 U.S. 562 (2000) ............................................................................................... 55

Vision Church v. Village of Long Grove,468 F.3d 975 (7th Cir. 2006) ................................................................................. 42

Westchester Day School v. Village of Mamaroneck,504 F.3d 338 (2d Cir. 2007) ..................................................................... 25,passim

Wright v. Southland Corp.,187 F.3d 1287 (11th Cir. 1999) ............................................................................. 51

Yung v. Lee,432 F.3d 142 (2d Cir. 2005) ................................................................................... 60

Rules:

Federal Rule of Civil Procedure 12(b)(1) ................................................................ 22

Federal Rule of Appellate Procedure 25 .................................................................. 66

Federal Rule of Appellate Procedure 32(a)(5)(A) ................................................... 65

Federal Rule of Appellate Procedure 32(a)(6) ......................................................... 65

Federal Rule of Appellate Procedure 32(a)(7)(B) ................................................... 65

Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) ............................................. 65

Statutes:

28 U.S.C. 1292(a)(1) ............................................................................................... 1

28 U.S.C. 1331 ........................................................................................................ 1



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42 U.S.C. 2000cc, et seq. ................................................................................ 1, 2, 3

42 U.S.C. 2000cc(a)(2)(C) .............................................................................. 26, 27

42 U.S.C. 2000cc(a)(1) ......................................................................................... 22

42 U.S.C. 2000cc(b)(1) ................................................................................... 40, 41

42 U.S.C. 2000cc(b)(2) ......................................................................................... 50

42 U.S.C. 2000cc-5(5) .................................................................................... 58, 61

42 U.S.C. 2000cc-5(7) .......................................................................................... 58

Conn. Gen. Stat. 7-147f(b) .................................................................. 13, 35, 37, 47

Conn. Gen. Stat. 52-571b .......................................................................... 1, 2, 3, 59

Other:

146 Cong. Rec. 16,698-16,699 (2000) H.R. Rep. No. 219, 106th Cong., 1st Sess.

21-24 (1999) ............................................................................................................. 28

Sarah Keeton Campbell,Restoring RLUIPAs Equal Terms Provision,58 Duke L.J. 1071 (2009) ........................................................................................ 42

Secretary of the Interiors Standards........................................................................ 14



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I. JURISDICTIONAL STATEMENT

This is an appeal from two orders and the final judgment of the United

States District Court for the District of Connecticut (Janet C. Hall, D.J.). On June

21, 2011, Judge Hall entered an order dismissing Rabbi Joseph Eisenbach (the

Rabbi). On February 17, 2012, Judge Hall entered an order denying the

Chabads Motion for Partial Summary Judgment and granting the defendants

Motions for Summary Judgment. The final judgment is dated February 21, 2012.

The trial court had jurisdiction pursuant to 28 U.S.C. 1331. Because the

trial courts order denied the Chabads Motion for Partial Summary Judgment and

granted the defendants Motions for Summary Judgment, the Court of Appeals has

jurisdiction pursuant to 28 U.S.C. 1292(a)(1). A notice of appeal was duly filed

on March 15, 2012 (No. 12-1057-L), and following cross-appeals, the Rabbi filed a

Notice of Appeal on the consolidated cross-appeals on April 12, 2012 (No. 12-

1495-Con).

II. STATEMENT OF THE ISSUES

Whether the trial court applied the correct legal analysis to the Religious

Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, et seq., and the

Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b.

Whether the trial court applied the correct legal analysis to the federal and

state constitutional issues.



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Whether the trial court erred by resolving disputed questions of fact instead

of only determining whether, as to any material issue, a genuine factual dispute

exists.

Whether the trial court applied the correct legal and factual analysis to the

Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, et

seq., the Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b, and the

federal and state constitutional issues when dismissing Rabbi Joseph Eisenbach.

Whether the trial court, in resolving the assertion the trial court lacked

jurisdiction, should have allowed a hearing, and/or discovery, and/or amendment to

demonstrate jurisdiction.

III. STATEMENT OF THE CASE

The Chabad purchased an existing building located at 85 West Street,

Litchfield, Connecticut (the Property), to operate a religious mission. Rabbi

Joseph Eisenbach retains rights to a lien interest against the Property. The property

is located in the historic district of the Borough of Litchfield. A Certificate of

Appropriateness was submitted to the historic district commission seeking to

modify the Property in order to accommodate the needs of the planned religious

activities. The historic district commission denied the Certificate of

Appropriateness.



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The Chabad and the Rabbi bring this case because the denial of the

Certificate of Appropriateness violated the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. 2000cc, et seq. (RLUIPA), the

Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b, and several

provisions of the federal Constitution and Connecticuts Constitution.

Janet C. Hall issued the two orders appealed from, but only the summary

judgment is published at Chabad Lubavitch of Litchfield County, Inc. v. Borough

of Litchfield, 853 F. Supp. 2d 214 (2012).

IV. STATEMENT OF FACTS1

A.The Chabad and the Rabbi and the Religious NeedsThe Chabads current location is inadequate to carry out the faith and

practice required by the Orthodox Hasidic religion. Doc.156-1 at 2 (citing Ex. B -

- Eisenbach Aff., 11 - 12; Third Am. Compl., 34 DE # 54). Due to numerous

limitations, the Chabad is unable to fulfill its religious mandate at the current

location. Doc.156-1 at 3 (citing Ex. B -- Eisenbach Aff., 11 - 12). The Chabad

has lost parishioners because it is unable to practice its religion at its current

1 The parties have stipulated to proceed on the basis of a deferred appendix.

For purposes of this pre-appendix brief, the trial courts decision will be referred to

as Opin followed by a reference to the page number; the other record entries will

be referred to as Doc followed by a reference to the paragraph or page number of

the cited record document.



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location. Doc.156-1 at 4 (citing Ex. B -- Eisenbach Aff., 11 - 12; Third Am.

Compl., 29 DE # 54).

The new Property was specifically purchased in order to adequately carry

out the faith and practice required by the Orthodox Hasidic religion. Doc.156-1 at

5 (citing Ex. B -- Eisenbach Aff., 11 - 12; Third Am. Compl., 32 DE # 54).

An Application for a Certificate of Appropriateness (the Application) was filed

with the historic district commission (the HDC) to modify the Property in order

to accommodate the needs of the planned religious activities at the Property.

Doc.156-1 at 6 (citing Third Am. Compl., pp. 1-2, and 2, 3, 18 DE # 54.

The Chabads advisory committee met numerous times and the size of

renovation was determined to be the minimum required for the religious mission

and purpose to serve the Northwest Connecticut area. Doc.156-1 at 59 (citing Ex.

B -- Eisenbach Aff., 11). Every aspect of the Application, throughout the design,

reflects the spiritual and physical needs to further the religious mission. Doc.156-1

at 60 (citing Ex. B -- Eisenbach Aff., 11). The Chabads advisory committee

designed a Synagogue reflecting conservatively on the size of the greater Litchfield

community and surrounding areas. Doc.156-1 at 61 and 62 (citing Ex. B --

Eisenbach Aff., 11).

Most of the Temples around the world fill their sanctuary twice a year

during high holy days and lifecycle events. Doc.156-1 at 63 (citing Ex. B --



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Eisenbach Aff., 11). One of New York Citys largest temples known as the

Central Synagogue averages twenty-five to fifty (25-50) at a Sabbath service

(non Bar/Bat Mitzvah week). Doc.156-1 at 64 (citing Ex. B -- Eisenbach Aff.,

11). Like other religious faiths, the Chabad has weekly attendance that varies each

week and season. Doc.156-1 at 65 (citing Ex. B -- Eisenbach Aff., 11). Like

other religious faiths (such as Christian churches), additional space is necessary to

accommodate for the times when the building will be filled. Doc.156-1 at 66

(citing Ex. B -- Eisenbach Aff., 11).

B.The Propertys Missing Architectural DetailThe Historic Survey of the Property was read into the HDC record. Doc.156-

1at 52 (citing Ex. E -- Boe Aff., 25).2

The Historic Survey reveals the Property

had undergone major remodeling and most of the architectural details had been

lost. Doc.156-1 at 53 (citing Ex. E -- Boe Aff., 25).

Since 1981, the Property has been used as a commercial enterprise. The

most visible portions of the Propertys building, including many of the elements

that defined its architectural style, were drastically altered or destroyed in order to

make the building suitable for commercial uses. Over the years, the building was

changed from a residential use to a commercial use. In 1971, the Property was

2 In addition to being entered into the HDC record as Exhibit # 80, Mr.

Michael Boes Affidavit was also verified as accurate by his own words and

attached to his deposition as Exhibit # 17. Doc.156-3 (Ex. A -- Nelson Aff., Ex. 11,

Boe Depo. Tr., p. 106, lines 1 22).



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officially rezoned from residential to commercial. The building subsequently

housed an antique shop with multiple vendors, a fabric store, and, most recently,

the Wilderness Shop (a retail outfitters store). The buildings original architectural

style has been lost, changed, or gutted during the time the HDC has existed.

Doc.156-1 at 54 (citing Ex. C -- Bearns Aff., 18).

The HDC did not require documentation of the building prior to the many

alterations and the HDCs records do not indicate the exact nature or extent of the

alterations. The lack of documentation and records makes it virtually impossible to

restore the Propertys building to its appearance prior to these alterations. The

many decades of commercial alterations have caused the Propertys building to

lose any type of historical significance as a contributing structure to the historic

district. Doc.156-1 at 54 (citing Ex. C -- Bearns Aff., 18).

C.A Brief History of the Boroughs Other AdditionsSecular properties have expanded and built additions in the historic district

that caused the residential property to become institutional through substantial

renovations. Doc.156-1 at 44 (citing Ex. C -- Bearns Aff., 4 6; citing Ex. D

-- Herbst Aff., Ex. 2, pp. 2 3). There are numerous residential houses within the

historic district that are similar in size, if not larger than, the proposed Synagogue.

Many of these houses were expanded over the years through sizable additions.

Doc.156-1 at 45 (citing Ex. C -- Bearns Aff., 4 6). Many of the properties



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located within the historic district were once residences and have been used,

historically and currently, for a variety of uses including institutional, business and

commercial. Doc.156-1 at 46 (citing Ex. C -- Bearns Aff., 15).

1. The Wolcott Library

In 1965, the Wolcott Library was allowed to make additions that caused it to

lose its historical residential character. Doc.156-1 at 120 (citing Ex.C -- Bearns

Aff., 4; Ex. D -- Herbst Aff., Ex. 2, pp. 2 3). The Library was once a residence

and, before the institutional conversion, was one of the most historically

significant residential structures in the Borough. Doc.156-1 at 121 (citing Ex. D

-- Herbst Aff., Ex. 2, p. 2).

In 1965, a substantial addition to the residence changed the appearance from

a residence to an institutional property. Doc.156-1 at 123 (citing Ex.C -- Bearns

Aff., 4; Ex. D). Although the HDCs denial letter in this case states it would only

approve an addition equal in square footage to the Chabads current building, the

HDC conceded the Library addition was larger than the original residence.

Doc.140-1, p. 32.

The HDCs denial compares the Chabads addition with the Librarys

addition and falsely asserts the Library addition is hidden below and behind the

colonial house. Photographic evidence clearly reveals the Library addition is



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plainly visible from the public street. Doc.137-2 at 16 (citing Ex. A -- Nelson

Aff., Ex 1; Ex 13, p. 3; Ex 14, p. 4).

The HDCs denial falsely asserts the Library addition is narrower than the

house. Photographic evidence clearly reveals the Library addition is not narrower.

Doc.137-2 at 18 (citing Ex. A -- Nelson Aff., Ex 1). Both the Official Litchfield

Assessors Card and the Librarys Site Plan show the Library addition extends

beyond each side. Doc.137-2 at 19 (citing Ex. A -- Nelson Aff., Ex 16; Ex 12, p.

3) Photographic evidence clearly reveals the Library addition also includes

industrial glass and metal doors as part of the overall modern appearance.

Doc.137-2 at 21 (citing Ex. A -- Nelson Aff., Ex 14, p. 3-4; Doc.137-4,pp.15-16).

2. The Rose Haven Home

The property that is currently the Rose Haven Home healthcare facility was

once a residence. Like the Chabads Property, the Rose Haven Home healthcare

facility was originally a Deming House. A substantial addition to the residence

changed the appearance from a residence to an institutional property. The addition

was very large in comparison to the original structure. The addition was

substantially larger than the original structure. Doc.156-1 at 124 (citing Ex. C --

Bearns Aff., 5).



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3. The Cramer and Anderson law firm

The property that is currently the Cramer and Anderson law firm was once a

residence. A substantial addition to the residence changed the appearance from a

residence to an institutional property. The addition was very large in comparison to

the original structure. The addition was substantially larger than the original

structure. Doc.156-1 at 125 (citing Ex. C -- Bearns Aff., 6).

D.Other Houses of WorshipThere are four Christian churches located within the historic district.

Doc.156-1 at 128 (citing Ex. C -- Bearns Aff., 8). Three of the Christian

churches are substantially larger in scale than the scale proposed by the Chabads

Application. Doc.156-1 at 129 (citing Ex. C -- Bearns Aff., 8). The HDCs own

witness conceded that the Chabads proposal was not larger in scale than three

Christian churches in the district. Doc.156-1 at 126 (citing Ex. A -- Nelson Aff.,

Ex 12, DAndrea Depo. Tr., p. 54, lines 8 - 22). The fourth Christian church --

United Methodist -- is similar in scale to the Chabads Application. Doc.156-1 at

130 (citing Ex. C -- Bearns Aff., 8). All four Christian churches are substantially

larger in visual height than that proposed in the Chabads Application. Doc.156-1

at 169 (citing Ex. C -- Bearns Aff., 13).



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1. Congregational Church

The Congregational Church is substantially larger in both scale (visual) and

size (square feet) than requested in the Chabads Application. Doc.156-1 at 133

(citing Ex. C -- Bearns Aff., 9). In 1966, the HDC approved an addition allowing

the Congregational Church to add 7,634 square feet. Doc.156-1 at 131 (citing Ex.

C -- Bearns Aff., 9). The 1966 addition alone is larger than the total size the HDC

will permit the Chabad -- 6,000 square feet. Doc.156-1 at 15 (citing DE # 137-6,

Ex. A -- Nelson Aff., Ex 21, p. 6).

In terms of scale, on its own the churchs main building is visually larger

than the scale proposed by the Chabads Application. Doc.156-1 at 135 (citing

Ex. A -- Nelson Aff., Ex. 14 -- photographs). In terms of size, on its own the

churchs main building is 14,370 square feet including a basement (7,185) and first

floor (7,185). Doc.156-1 at 137 (citing Ex. A -- Nelson Aff., Ex. 16 -- Assessors

card).3

Just one floor of the main building is more than the total the HDC would

permit for the Chabad. Doc.156-1 at 15 (citing DE # 137-6, Ex. A -- Nelson Aff.,

Ex 21, p. 6).

Comparing the total size, the HDC will only permit the Chabad a total of

6,000 square feet. Doc.156-1 at 15 (citing DE # 137-6, Ex. A -- Nelson Aff., Ex

21, p. 6). Comparing the same building method used in the Chabads Application,

3 The photographs and exhibits were entered into the HDC record as

composite # 135.



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taking the existing visual scale and stacking the same footprint of 7,185 square

feet vertically would create an additional two levels (totaling an additional 14,370

square feet). Doc.156-1 at 138 (citing Ex. A -- Nelson Aff., Ex. 16 -- Assessors

card). The church is now more than four times larger than the total size the HDC

would grant to the Chabad, and seven times larger than the total size the HDC

would grant to the Chabad (when including the stacking method used by the

Chabads Application). Doc.156-1 at 139 (citing Ex. A -- Nelson Aff., Ex. 16--

Assessors card).

2. St. Michaels Parish

St. Michaels Parish is substantially larger in scale than requested in the

Chabads Application. Doc.156-1 at 160 (citing Ex. A -- Nelson Aff., Ex. 21 --

photograph); and Doc.156-1 at 158 (citing Ex. C -- Bearns Aff., 11). The

church is now nearly three times larger than the total size the HDC would permit

the Chabad. Doc.156-1 at 159 (citing Ex. C -- Bearns Aff., 11).

In terms of comparing scale, on its own the churchs main building is

visually larger than the scale proposed by the Chabads Application. Doc.156-1 at

160 (citing Ex. A -- Nelson Aff., Ex. 21 -- photograph). Taking the existing

visual scale and stacking the same footprint vertically would create a size four

times larger than the total size the HDC would grant to the Chabad. Doc.156-1 at



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161 (citing Ex. A -- Nelson Aff., Ex. 22 -- SK4 comparison; Ex. 23 -- Assessors

card).4

3. St. Anthony of Padua

St. Anthony of Padua is substantially larger in scale than requested in the

Chabads Application. Doc.156-1 at 165 (citing Ex. C -- Bearns Aff., 12). The

church is now three times larger than the total the HDC would permit the Chabad.

Doc.156-1 at 166 (citing Ex. C -- Bearns Aff., 12).

In terms of comparing scale, on its own the churchs main building is

visually larger than the scale proposed by the Chabads Application. Doc.156-1 at

167 (citing Ex. A -- Nelson Aff., Ex. 25 -- photograph). Taking the existing

visual scale and stacking the same footprint vertically would create a size three

times larger than the total size the HDC would grant to the Chabad. Doc.156-1 at

168 (citing Ex. A -- Nelson Aff., Ex. 26 -- SK2 comparison; Ex. 27 - Assessors

card).5

4. United Methodist

The United Methodist Church is similar in scale as that requested in the

Chabads Application. Doc.156-1 at 143 (citing Ex. C -- Bearns Aff., 10). In

4 The photograph and exhibits were entered into the HDC record as composite

# 134.

5The photograph and exhibits were entered into the HDC record as composite

# 136.



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the mid-eighties, the HDC granted a Certificate of Appropriateness allowing the

church to apply vinyl siding. Doc.156-1 at 150 (citing Ex. A -- Nelson Aff., Ex.

13, Bucklin Depo. Tr., p. 39, lines 9 18). Vinyl siding does not comply with the

HDCs standards for historic preservation. Doc.156-1 at 153 (citing Ex. A--

Nelson Aff., Ex. 13, Bucklin Depo. Tr., p. 41, lines 22 23). No other buildings in

the district have vinyl siding. Doc.156-1 at 157 (citing Ex. A -- Nelson Aff., Ex.

13, Maggie Bucklin Depo., p. 42, lines 1 24). The HDC granted the request

because it was trying to help the church save money. Doc.156-1 at 156 (citing

Ex. A -- Nelson Aff., Ex. 13, Bucklin Depo. Tr., p. 46, lines 1 6).

E.The Regulation of Architecture in the BoroughThe historic district has been regulated since 1959 by a Special Act of the

Connecticut General Assembly (the Special Act). The 1959 Special Act

authorized consideration of the scale of a building but not the size of a

building. Doc.156-1 at 47 (citing Ex. A -- Nelson Aff., Ex. 10, p. 5) and

Doc.156-1 at 48 (citing Ex. A -- Nelson Aff., Ex. 10, pp. 1 - 5). Today, likewise,

the HDC must consider the scale (visual) of a building, but not the size (square

footage) of a building. See Conn. Gen. Stat. 7-147f(b): The commission shall

not consider interior arrangement or use. The trial courts decision uses the term

size when referring to interior square footage. Opin,p.23 n.14.



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The HDCs 30(b)(6) witness conceded the HDCs denial was based upon

consideration of the interior square footage of the use. Doc.156-2, p. 56 (Ex. A --

Nelson Aff., Ex 6, DAndrea (as Fed. R. Civ. P. 30(b)(6) witness) Depo. Tr., p. 56,

lines 8 11). HDC member Glenn Hillman (Hillman) drafted the denial letter

and admitted that he considered the interior square footage (size) as a reason for

denial. Doc.156-1 at 9 (citing Ex. A -- Nelson Aff., Ex 2, Hillman Depo. Tr., pp.

91 92).

The HDCs witness conceded the HDC is not required to abide by the

Secretary of the Interiors Standards. Doc.156-1 at 19 (citing Ex. A -- Nelson

Aff., Ex 6, DAndrea (as Fed. R. Civ. P. 30(b)(6) witness) Depo. Tr., p. 38, lines

13 16).

F. The Arbitrary History of the HDCHDC member Montebello testified that when the HDC makes a decision on

an application, there is no right or wrong. Doc.156-1 at 42 (citing Ex. A --

Nelson Aff., Ex 9, Montebello Depo. Tr., p. 57, lines 14 - 18). Montebello testified

he only votes when two commissioners vote one way, and two vote another way,

on the same application. Doc.156-1 at 43 (citing Ex. A -- Nelson Aff., Ex 9,

Montebello Depo. Tr., p. 62, lines 20 25). HDC members disagree about whether

or not an application should be approved or denied because each member has



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personal aesthetics opinions. Doc.156-1 at 23 (citing Ex. A -- Nelson Aff., Ex 7,

Sansing Depo. Tr., p. 66, lines 15 23).

HDC member Crist testified to a recent example of arbitrary enforcement.

Although the HDC determined that flower boxes conflict with historical standards,

after national news attention and community outcry the HDC allowed them to be

displayed. Doc.156-1 at 36 (citing Ex. A -- Nelson Aff., Ex 3, Crist Depo. Tr., p.

32, line 23 p. 34, line 2).

As noted above, the HDC granted a Certificate of Appropriateness allowing

the United Methodist Church to apply vinyl siding despite the HDCs

determination that vinyl siding does not comply with the HDCs standards for

historic preservation. Doc.156-1 at 153 (citing Ex. A-- Nelson Aff., Ex. 13,

Bucklin Depo. Tr., p. 41, lines 22 23)

Both Crist and Crawford voted against the majority of the HDC on the

Chabads Application in this case regarding the clock tower and cupola. Doc.156-1

at 40 (citing Ex. A -- Nelson Aff., Ex 3, Crist Depo. Tr., p. 37, lines 11 16);

Doc.156-1 at 30 (citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo. Tr., p. 78,

line 5 p. 79, line 14). Although the majority had voted against the Chabads

proposed clock tower and cupola, Crawford expressly noted that there were other

cupolas of a similar type in the historic district as that proposed by the Chabads



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Application. Doc.156-1 at 31 (citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo.

Tr., p. 78, line 5 p. 79, line 14).

Every HDC member has disagreed with other members on an application

and every member has voted against the majority on an application.6

G.The ApplicationThe Applications design focuses upon the Temple/Worship area and all

other uses in the design were accommodated by stacking the other uses on other

floors equal to the size and orientation necessary to create the Temple/Worship

area. Doc.156-1 at 77 (citing Ex. A -- Nelson Aff., Ex 11, Boe Depo. Tr., p. 55,

line 14 - p. 58, line 20). The size and scale are the smallest possible in order to

meet the Chabads religious mandates and the necessary lot orientation while

6 Doc.156-1 at 24 (citing Ex. A -- Nelson Aff., Ex 7, Sansing Depo.

Tr., p. 70, line 25 p. 71, line 18); Doc.156-1 at 25 (citing Ex. A -- Nelson Aff.,Ex 7, Sansing Depo. Tr., p. 70, line 25 p. 71, line 18); Doc.156-1 at 26 (citing

Ex. A -- Nelson Aff., Ex 8, Acerbi Depo. Tr., p. 46, lines 12 - 14); Doc.156-1 at

27 (citing Ex. A -- Nelson Aff., Ex 8, Acerbi Depo. Tr., p. 46, lines 1 - 14);

Doc.156-1 at 28 (citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo. Tr., p. 78,

line 5 p. 79, line 14); Doc.156-1 at 29 (citing Ex. A -- Nelson Aff., Ex 4,

Crawford Depo. Tr., p. 78, line 5 p. 79, line 14); Doc.156-1 at 32 (citing Ex. A

-- Nelson Aff., Ex 2, Hillman Depo. Tr., p. 80, line 18 p. 83, line 9); Doc.156-1

at 33 (citing Ex. A -- Nelson Aff., Ex 2, Hillman Depo. Tr., p. 80, line 18 p. 83,

line 9); Doc.156-1 at 34 (citing Ex. A -- Nelson Aff., Ex 5, Kuhne Depo. Tr., p.54, line 22 p. 57, line 8); Doc.156-1 at 35 (citing Ex. A -- Nelson Aff., Ex 5,

Kuhne Depo. Tr., p. 54, line 22 p. 57, line 8); Doc.156-1 at 38 (citing Ex. A --

Nelson Aff., Ex 3, Crist Depo. Tr., p. 32, line 16 p. 35, line 25); Doc.156-1 at

39 (citing Ex. A -- Nelson Aff., Ex 3, Crist Depo. Tr., p. 35, lines 17 - 25);

Doc.156-1 at 41 (citing Ex. A -- Nelson Aff., Ex 9, Montebello Depo. Tr., p. 56,

line 14 p. 57, line 1).



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complying with federal, state, and local laws. Doc.156-1 at 84 (citing Ex. B --

Eisenbach Aff., 12, 27 28; Boe Depo. Tr., p. 114, line 24 p. 115, line 3; p.

128, lines 10 21; p. 204, line 24 p. 205, line 2). The size and design of the

Temple/Worship area are based upon the Chabads weekly services and high holy

days in the same manner Christian facilities are made large enough to

accommodate Christian holidays at Easter and Christmas. Doc.156-1 at 81 (citing

Ex. A -- Nelson Aff., Ex 11, Boe Depo. Tr., p. 65, lines 2 - 11).

The size and design meet national historic preservation standards. Doc.156-

1 at 80 (citing Ex. A -- Nelson Aff., Ex 11, Boe Depo. Tr., p. 64, lines 15 - 20).

The size and scale are rendered from the standards found in the Department of

Interior Standards. Doc.156-1 at 83 (citing Ex. A -- Nelson Aff., Ex 11, Boe

Depo. Tr., p. 79, lines 6 - 11).

H.The HDC Meets to Discuss the ApplicationThe Application was reviewed over the course of four meetings. Doc.156-1

at 85 (citing Ex. D -- Herbst Aff., Ex. 1, and Ex. 2).

1. The First Meeting

The Chabad presented plans and materials and answered the HDCs

questions at the first meeting held on September 6, 2007. Doc.156-1 at 86 (citing

Ex. E -- Boe Aff., 20 - 35).



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During the meeting, HDC member Kuhne (Kuhne) made numerous strong

statements indicating her opposition to the proposed addition of the Star of David.

Doc.156-1 at 87 (citing Ex. E -- Boe Aff., 21). Kuhne stated that the Star of

David is not historically compatible with the district. Doc.156-1 at 88 (citing

Ex. E -- Boe Aff., 21). Kuhne also stated that the use of stained-glass windows

would be an inaccurate feature. Doc.156-1 at 89 (citing Ex. E -- Boe Aff., 21).

Yet, the United Methodist Church has stained-glass windows that display the Star

of David. Doc.156-1 at 90 (citing Ex. C -- Bearns Aff., 8).

HDC member Sansing regarded the statement the Star of David is not

appropriate for the historic district as an anti-Semitic statement. Doc.156-1 at 91

(citing Ex. A -- Nelson Aff., Ex. 7, Sansing Depo. Tr., p. 82, line 1 85, line 22).

Sansing further noted that anti-Semitism can sometimes be hidden and not

demonstrative overtly. Doc.156-1 at 92 (citing Ex. A -- Nelson Aff., Ex. 7,

Sansing Depo. Tr., p. 84, lines 11 - 14).

In response to the Chabads architects presentation, HDC member Acerbi

lifted her hands to block the entire proposed addition and stated: That looks just

fine. Doc.156-1 at 96 (citing Ex. E -- Boe Aff., 26). Acerbi added she did not

like the addition because it may impact her personally due to her own home being

nearby. Doc.156-1 at 97 (citing Ex. E -- Boe Aff., 27). Acerbi then concluded:

We have to get the public out on this project for the public hearing with a tone of



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urgency seaming dismissive of the Application. Doc.156-1 at 99 (citing Ex. E --

Boe Aff., 28).

HDC member Crawford also made a derogatory statement about the design

and added that it looked like it belonged in a mill town. Doc.156-1 at 94 (citing

Ex. E -- Boe Aff., 31 and 32).

Although state law prohibits any HDC discussion outside the public

meetings, after the meeting HDC members Hillman, Kuhne, and Crawford met

outside the public meeting to discuss the Chabads Application. Doc.156-1 at 10

(citing Ex. A -- Nelson Aff., Ex 4, Crawford Depo. Tr., p. 66, line 20 p. 67, line

25; p. 69, line 19 p. 70, line 14).

2. The Second Meeting


questions at the second meeting held on October 18, 2007. Doc.156-1 at 100

(citing Ex. E -- Boe Aff., 36 - 39).

At the meeting, Kuhne abruptly interrupted the Chabads attorney and

argued with him about the applicable law. Doc.156-1 at 101 (citing Ex. E -- Boe

Aff., 36). Kuhne then announced that the Application was not signed at the first

meeting. Doc.156-1 at 102 (citing Ex. E -- Boe Aff., 36). The HDCs attorney

then made the unilateral decision that the next meeting would be broken up into

two parts and demanded that the Chabads attorneys comply. Doc.156-1 at 103



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(citing Ex. D -- Herbst Aff., Ex. 1, p. 2). The third and fourth meetings were held

as the bifurcated meetings. Doc.156-1 at 104 (citing Ex. D -- Herbst Aff., Ex. 1

and Ex. 2).

3. The Third Meeting


questions at the third meeting held on November 15, 2007. Doc.156-1 at 105

(citing Ex. E -- Boe Aff., 40).

In response to the HDCs comments during the first meeting, the Chabads

architect made numerous changes to the plans to accommodate the HDCs

demands. Doc.156-1 at 106 (citing Ex. E -- Boe Aff., 39). The Chabads

architect made each and every change requested by the HDC and the HDCs

architect to accommodate the HDCs demands. Doc.156-1 at 108 (citing Ex. A --

Nelson Aff., Ex 11, Boe Depo. Tr., p. 243, line 10; p. 244, line 25).

4. The Fourth Meeting


questions at the fourth meeting held on December 17, 2007. Doc.156-1 at 109

(citing Ex. B -- Eisenbach Aff., 17).

At the meeting, the HDC refused to identify any additional concerns when

asked. Doc.156-1 at 111 (citing Ex. C -- Bearns Aff., 17).



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At various points, the HDCs attorney attempted to prevent the Chabad from

submitting relevant documents and further attempted to delete or remove

documents already submitted and marked as exhibits in the record. Doc.156-1 at

112 (citing Ex. C -- Bearns Aff., 20).

I. The HDC Denies the ApplicationThe HDC denial letter stated it would only approve an addition equal in

square footage to the current building. Doc.156-1 at 15 (citing DE # 137-6, Ex.

A -- Nelson Aff., Ex 21, p. 6). The square footage of the current building is 2,679

square feet.Id. The HDCs decision further dictates any addition must be

subordinate to the width of the current building.Id.7The HDC decision

concluded: Depending upon 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. (emphasis

supplied). Notably, the HDCs decision limits the Chabad to an addition equal in

square footage to the current building 2,769 and demands that the addition

7 Yet, the Wolcott Library addition greatly exceeded the width of the original

building and further the HDC conceded the Library addition was not equal to but

was larger than the original structure. Doc.140-1, p. 32.



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include a design of the below grade spaces8

so that the total size approximates

6,000 square feet of usable space.Id.

V. STANDARD OF REVIEW

This Court reviews a trial courts conclusions of law de novo. See Guiles ex

rel. Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006). This Court reviews a

trial courts findings of fact for clear error. See Guiles ex rel. Guiles v. Marineau,

461 F.3d 320, 323-24 (2d Cir. 2006).

Where jurisdiction is challenged solely on the pleadings and supporting

affidavits, the plaintiff need only make aprima facie showing of jurisdiction. See

Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). The

trial court must construe jurisdictional allegations liberally and take as true

uncontroverted factual allegations.Id. The Court reviews a trial courts dismissal

pursuant to Fed. R. Civ. P. 12(b)(1) de novo accepting all factual allegations in

the complaint as true. See Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188

(2d Cir. 2009) (per curiam).

VI. SUMMARY OF ARGUMENT

The trial court held that, as a matter of law, RLUIPA 42 U.S.C.

2000cc(a)(1) Substantial Burden,did not apply in this case. Opin,p.13. The

8 Below grade spaces are not visible so they are beyond the HDCs regulation;

yet, the HDCs denial letter states the below grade spaces must be included in the

total square footage it would allow.



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trial court then concludes, as a matter of law, the Substantial Burden analysis is

based upon a neutral law of general applicability. Opin,p.13. As a result, the trial

court applied the rational basis test. Opin,p.14.

Under the Equal Terms, the trial court held the comparators were not valid.

However, throughout the HDCs denial, the document repeatedly states it is

attempting to retain the historical residential character, stating the proposal

would destroy any sense of the historical residential character of the building.

The Chabad was denied because the HDC felt the changes would cause the

Property to lose the historical residential character. The issue presented is

whether the additions met the stated governmental interest applied to the Chabads

Property whether the additions retained the historical residential character of the

property. The trial court erred by diverting away from the governmental interest

applied by the HDC to deny the Chabads application.

The trial courts error in misreading the purported government interest

caused it to misread the applicable standard. There is no provision in the Special

Act, or any subsequent regulation in any year, stating historic preservation may be

ignored. The same preservation of historical residential character has been in

effect since 1959. This was the standard applied to deny the Chabads application.

This standard was not applied to the other additions.



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As with the Equal Terms analysis, the trial court applied the same logic

when invalidating the comparators under Nondiscrimination. The trial court then

reviewed each of the remaining claims based upon the analysis applied to the

RLUIPA claims.

VII. ARGUMENT

POINT I

THE HDC APPLIED AN INDIVIDUALIZED ASSESSMENT TO THE

CHABADS APPLICATION

A. The Law

An application of land use regulations that involves application of

discretionary standards, such as determining a special or conditional use permit

application, is an individualized determination. See Fortress Bible Church v.

Feiner, 734 F. Supp. 2d 409, 498 (S.D.N.Y. 2010), affd, Fortress Bible Church v.

Feiner, No. 10-3634 (2d Cir. September 24, 2012).Fortress Bible did not either

affirm or reverse the trial courts holding on this issue. Slip Op.,p.24. Rather, this

Court noted this Circuit has not specifically addressed whether zoning decisions

trigger rational basis review or strict scrutiny.Id. at 23.

Fortress Bible cites to other courts, but several courts of appeals cases were

overlooked. Many courts of appeals cases have specifically analyzed RLUIPA as

individualized assessment cases. The Ninth Circuit followed other courts of

appeals to hold:



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In this case, while the zoning scheme itself may be facially neutral and

generally applicable, the individualized assessment that the City made to

determine that the Churchs rezoning and CUP request should be denied is

not. We have never held that a zoning regulation cannot impose a substantial

burden under RLUIPA simply by the fact that it is a zoning regulation. SeeGuru Nanak [Sikh Socy of Yuba City v. County of Sutter, 456 F.3d 978 (9thCir. 2006)]at 985-92 (specifically rejecting the countys contention that its

denial of the CUP at issue in that case falls outside the scope of RLUIPA

because its use permit process is a neutral law of general applicability, id.at 986); San Jose Christian College, 360 F.3d at 1033-36.

Intl Church of the Foursquare Gospel v. City of San Leandro, 634 F.3d 1037 (9th

Cir. 2011), opinion amended, No. 09-15163, 2011 WL 1518980 (9th Cir. Apr. 22,

2011), cert. denied, 132 S. Ct. 251 (2011). As in this case, the trial court had

granted summary judgment against the plaintiffs. The Ninth Circuit reversed, and

explained that the trial court erred in determining that the denial of space adequate

to house all of [a plaintiff churchs] operations was not a substantial burden.Id. at

1047.

In Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2007),

this Court held that when a religious organization contends that the denial of its

land use application has impeded its religious exercise by coercing it to function in

facilities inadequate to accommodate its religious exercise, the trial court must

conduct proper inquiry concerning the proposed use of the desired building and the

impact upon religious exercise that denial of that use will have.Id. at 348-349.

BothFortress Bible and Westchesterallowed a review of evidence presented

through a trial. In both cases, the evidence revealed RLUIPA violations even



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through the challenged laws on their face were neutral laws of general

applicability.

In Guru Nanak Sikh Socy of Yuba City v. County of Sutter, 456 F.3d 978,

987 (9th Cir. 2006), the Ninth Circuit held By its own terms, it appears that

RLUIPA does not apply directly to land use regulations such as the Zoning Code

here, which typically are written in general and neutral terms. However, when the

Zoning Code is applied to grant or deny a certain use to a particular parcel of land,

that application is an implementation under 42 U.S.C. 2000cc(a)(2)(C).

After determining the issue would be decided as a matter of law, the trial

court misunderstood the law. The trial court held the substantial burden analysis

under RLUIPA tracks the analysis under the Free Exercise Clause. Opin,p.8. The

trial courts legal analysis is based upon [Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 US 872 (1990)] stating, [e]ven if we were

inclined to breathe into [Sherbert v. Verner, 374 U.S. 398 (1963)] some life

beyond the unemployment compensation field, we would not apply it to require

exemptions from a generally applicable . . . law. Opin,p.11 n.8.9

9

The trial court noted the trial courts decision inFortress Bible, 734 F. Supp.2d 409, 49899 (S.D.N.Y. 2010) (finding a zoning application process to be an

individual assessment where the Town had no mechanistic assessments in place

for evaluating the Churchs application, relied on subjective opinions of the Town

Boards members, and treated the Church differently than other applicants).

However, the trial courts decision does not discuss the similar facts in the record

of this case.



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However, the trial court failed to understand both the Supreme Courts

precedent and the reason RLUIPA was enacted by Congress. First, the Supreme

Courts decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 537 (1993), explained that the limitation in Smith was not applicable to

individualized assessments, holding that when government has in place a

system of individualized government assessment of the reasons for the relevant

conduct. . . the government may not refuse to extend that system to cases of

religious hardship without compelling reason) (quoting Smith, 494 U.S. at 884)

(internal quotation marks omitted).

Second, Congress enacted RLUIPA specifically for the purpose of changing

the generally applicable rule and restoring the substantial burden test that had

existed prior to Smith, under which a plaintiff did not have to show that the

governments action is aimed at religion as a matter of statutory right in two

specific areas (i.e., land use and institutionalized persons). See 42 U.S.C.

2000cc(a)(2)(A), (B) and (C).

Congress enacted RLUIPA to backstop[ ] the explicit prohibition of

religious discrimination. Sts. Constantine & Helen Greek Orthodox Church v.

City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005).10

These provisions were

10 This Court cited with approval and followed the Seventh Circuits reasoning

in Westchester, 504 F.3d at 350-351.



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included in RLUIPA because Congress recognized that land use decisions are often

based, not on neutral generally applicable rules, but on individualized assessments

that grant or deny permission for a particular use, often without any clear

standards. See 146 Cong. Rec. 16,698-16,699 (2000) (hereinafter Joint

Statement); H.R. Rep. No. 219, at 20-21, 24, 106th Cong., 1st Sess. 21-24 (1999).

The Supreme Court recognized that such laws grant officials a greater

degree of discretion than do most laws. See MacDonald, Sommer & Frates v. Yolo

Cty, 477 U.S. 340, 350 (1986) (Local agencies charged with administering

regulations governing property development are singularly flexible institutions).

Congress found that such systems of individualized land use assessments readily

lend themselves to discrimination against religious institutions. See Joint Statement

at 16,699; H.R. Rep No.,supra, at 18-24. As the Seventh Circuit also recognized,

religious institutions especially those that are not affiliated with the

mainstream Protestant sects or the Roman Catholic Church [are

vulnerable] to subtle forms of discrimination when, as in the case of

the grant or denial of zoning variances, a state delegates essentially

standardless discretion to nonprofessionals operating without

procedural safeguards.

Sts. Constantine, 396 F.3d at 900;see also Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214, 1225 (11thCir. 2004), cert. denied, 543 U.S. 1146 (2005).

These RLUIPA provisions reflect the Supreme Courts interpretation of the

Free Exercise Clause in Sherbert, and its progeny, which hold that laws burdening

religious exercise that have eligibility criteria [that] invite consideration of the



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particular circumstances and lend themselves to individualized governmental

assessment of the reasons for the relevant conduct, are subject to heightened

scrutiny. See Smith, 494 U.S. at 884.

The Supreme Court believes that facial neutrality is the minimum

requirement for a law to satisfy Free Exercise, Church of the Lukumi Babalu Aye,

508 U.S. at 533, but it is certainly not determinative.Id. at 534. A lack of true

neutrality may be masked as well as overt, id., requiring close examination of its

effect and real operation.Id. at 535.

InFirst Covenant Church of Seattle v. City of Seattle, 840 P.2d 174, 180

(Wash. 1992), the Washington Supreme Court held that historic preservation laws

were not neutral or generally applicable because the sites, improvements, and

objects they govern are arbitrarily selected, and the selection process requires

individual evaluation of each building, site, or improvement. See also, Konikov v.

Orange Cty, Fla., 410 F.3d 1323 (11th Cir. 2005); Cottonwood Christian Ctr. v.

Cypress Redevel. Agency, 218 F. Supp. 2d 1203, 1222-23 (C.D. Cal. 2002)

(Citys refusal to grant plaintiff's application for conditional use permit invites

individualized assessments of the subject property and the owners use of such

property and contain mechanisms for individualized exceptions.).



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B. The Facts

The trial courts decision provides very little factual discussion. The trial

courts error on the legal analysis appears to lead it to conclude that as a matter of

law no Substantial Burden could be proven. The trial court provides this Court

with little opportunity to review facts the trial court relied upon.

The only facts stated by the trial court in the Substantial Burden section are

the following disputed facts:

1. Defendants argue that the size of Chabads proposed renovation is

unnecessary given the size of Chabads congregation. Opin,pp.9-10. The Chabad

disputes this fact because the current needs of its congregation are not being met,

and that every aspect of the renovation reflects the spiritual and physical needs to

further Plaintiffs mission. Opin,p.10.

2. Defendants argue that large portions of the proposed renovation would be

devoted to secular purposes, including the Rabbis residential quarters and a

swimming pool in the basement. Opin,p.10. The Chabad disputes this fact because

even the residential areas of the proposed renovation will be dedicated to serve

the religious needs of Plaintiffs participants and the Rabbis family. Opin,p.10.

The two items above are the trial courts single sentence summaries of an

extensive record presented by the Chabad. The record contains specific details

from sworn testimony supporting the Chabads statements. See Doc.156-1 at 56-



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74 (citing Ex. B -- Eisenbach Aff., 2-11). In summary, the Chabad expends

thousands of dollars to rent space for Gan Israel and other programs including

renting a pool and shuttling participants around the area for program services.

Doc.156-1 at 73 (citing Ex. B -- Eisenbach Aff., 9). Like other religious faiths

(such as Christian churches), additional space is necessary to accommodate for the

times when the building will be filled. Doc.156-1 at 66 (citing Ex. B -- Eisenbach

Aff., 11). In countless public addresses, the Lubavitcher Rebbe called on his

followers to make their homesBatei Chabad-- Chabad Houses. Doc.156-1 at 69

(citing Ex. B -- Eisenbach Aff., 5). The mandates of the Chabads faith are found

in a long library of texts discussing the use of its Chabad House for religious

purposes. Doc.156-1 at 70 (citing Ex. B -- Eisenbach Aff., 6). The record

explicitly details how each area of the entire Chabad House is used for religious

purposes. Doc.156-1 at 67-73 (citing Ex. B -- Eisenbach Aff., 2-9).

When applying the reasoning of decisions from this Court, the Supreme

Court, and the Ninth and Seventh Circuits to the case at hand, the Chabad raises

issues of material fact as to whether the HDCs denial constituted a substantial

burden on its religious exercise.

1. Inadequate facilities

In Westchester, this Court held that a land use regulation prohibiting a

Jewish day school from expanding its facilities to provide much-needed additional



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space for religious education and practice constituted a substantial burden on the

organizations religious exercise. This Court has held that where there has been a

denial of a religious institutions building application, courts appropriately speak of

government action that directly coerces the religious institution to change its

behavior, rather than government action that forces a religious entity to choose

between religious precepts and government benefits.Id. at 349;see also Jolly v.

Coughlin, 76 F.3d 468, 477 (2d Cir. 1996), quoting Thomas v. Review Board of the

Indiana Employment, 450 U.S. 707, 718 (1981) (a substantial burden exists where

the state puts substantial pressure on an adherent to modify his behavior and to

violate his beliefs);Reaching Hearts International, Inc. v. Prince Georges

County, 584 F.Supp.2d 766, 785 (D. Md. 2008), quoting Lovelace v. Lee, 472 F.3d

174, 187 (4th Cir. 2006) (substantial burden where local government, through act

or omission, puts substantial pressure on an adherent to modify his behavior and to

violate his belief). Moreover, a burden imposed by governmental action or

omission need not be insuperable to be substantial. Westchester, 504 F.3d at 349;

Reaching Hearts Intl, Inc., 584 F.Supp.2d at 785.

The trial court notes the this fact, stating the current needs of its

congregation are not being met, and that every aspect of the renovation reflects

the spiritual and physical needs to further Plaintiffs mission. Opin,p.10. In

Westchester, this Court held that when a religious organization contends that the



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denial of its land use application has impeded its religious exercise by coercing it

to function in facilities inadequate to accommodate its religious exercise, the trial

court must conduct proper inquiry concerning the proposed use of the desired

building and the impact upon religious exercise that denial of that use will have.Id.

at 348-349.

Although the trial court clearly notes the fact is disputed, the trial court

failed to provide a proper inquiry. UnlikeFortress Bible and Westchester, where a

review of evidence was presented through a trial, the trial court issued summary

judgment.

This Court recently reaffirmed this substantial burden review inFortress

Bible. The trial court credited Karamans testimony that the Churchs Mount

Vernon facility was not adequate to accommodate its religious practice.Fortress

Bible, Slip Op.,p.20.11

11 In addition to cases from this Court, the Ninth and the Seventh Circuits,

numerous district court decisions support the Chabads claim that it raised a triable

issue of material fact as to whether the HDC substantially burdened its religious

exercise. See, e.g., Rocky Mountain Christian Church v.Board of Cnty. Commrs,612 F. Supp. 2d 1163, 1170 (D. Colo. 2009) (denial of churchs expansion

proposal can constitute a substantial burden even if religious activity continues at

the current site);Albanian Associated Fundv. Township of Wayne, No. 06-cv-3217(PGS), 2007 WL 2904194, at *10 (D.N.J. Oct. 1, 2007) (fact that plaintiffs may

use an inadequate facility and practice some aspects of their religion in that facility

does not render any burden on religious exercise insubstantial); Mintzv.RomanCatholic Bishop of Springfield, 424 F. Supp. 2d 309, 321 (D. Mass. 2006)(inability to build a parish center, which would serve as a meeting place for parish

counsel, facilitate church-related gatherings, and alleviate rectory crowding,



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The same facts presented inFortress Bible were presented in this case. The

Chabads current location is inadequate to carry out the faith and practice required

by the Orthodox Hasidic religion. Doc.156-1 at 2. Due to numerous limitations,

the Chabad is unable to fulfill its religious mandate at the current location.

Doc.156-1 at 3. The Chabad has lost parishioners because it is unable to practice

its religion at its current location. Doc.156-1 at 4.

InFortress Bible,this Court found a substantial burden based upon the same

facts presented in this case, finding the Church was substantially burdened by its

inability to construct an adequate facility.Fortress Bible, Slip Op.,p.21.

2. Arbitrary, Capricious or Unlawful

This Court has acknowledged that substantial burden may be demonstrated

where the record casts doubt on good faith of government actors or where

would substantially burden all these religious activities); Congregation Kol Amiv.Abington Twp., No. 01-1919, 2004 WL 1837037, at *8-9 (E.D. Pa. Aug. 17,

2004) (denial of variance preventing development and operation of place of

worship constitutes substantial burden), amended, No. 01-1919, 2004 WL 2137819

(E.D. Pa. Sept. 21, 2004); Castle Hills First Baptist Church v. City of Castle Hills,No. 5:01CV01149, 2004 WL 546792, at *10 (W.D. Tex. Mar. 17, 2004) (denial of

special use application to expand facility for religious education may substantially

burden religious exercise if it limits the number of children who can be educated

and the quality of the educational programs offered); Cottonwood Christian Ctr.v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1212, 1226-1227 (C.D.

Cal. 2002) (substantial burden may exist where the physical limitations of churchs

current facility limited its ability to conduct many of its programs, its outreach

efforts, and to meet at one time in a single location).



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government defendants have acted in an arbitrary, capricious or unlawful nature

with regard to the religious organizations application. Westchester, 504 F.3d at

350-351 (citation omitted).

The trial court notes the Chabad asserts that the HDCs decision was

arbitrary and illegal because the HDC improperly considered the proposed square

footage of Chabads proposed renovation. Opin,p.10. In a footnote, the trial court

rejects this fact, holding there is nothing in the record to indicate that it is not the

HDCs normal procedure to consider the square footage -- as a measure of scale -

- of a proposed project. Opin,p.13 n.9.

Two facts directly contradict the trial court. First, the record clearly states

the HDC is prohibited from considering the square footage. Conn. Gen. Stat. 7-

147f(b) expressly states, The commission shall not consider interior arrangement

or use. The trial courts decision uses the term size when referring to interior

square footage. Opin,p.23 n.14. The HDC is only permitted by statute to review

exterior elements. Logic dictates that interior arrangement or use does not create

exterior visual impact. For this reason, the statute states the HDC cannot consider

interior arrangement or use. The record clearly contradicts the trial court.

The HDCs 30(b)(6) witness conceded the HDCs denial was based upon

consideration of the interior square footage of the use. Doc.156-2, p. 56. HDC



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member Glenn Hillman (Hillman) drafted the denial letter and admitted that he

considered the interior square footage as a reason for denial. Doc.156-1 at 9.

Second, the trial court confuses scale with square footage. Logically,

visual scale is entirely distinct from square footage (size) because the same

building footprint could expand vertically to great height while only utilizing a

single story. A building of great height would be large in scale visually, but

much smaller in square footage than a comparable building using the same vertical

height with many floors. The trial court appears to concede this logic by stating it

is not clear from the record that Chabads proposed addition must necessarily be

less than or equal to the square footage of the current property in order to be an

appropriate scale, especially given the downward slope of the property and

Chabads proposed underground level. Opin,p.13,p.9.12

The error is further revealed in the HDCs denial letter. The HDCs denial

letter stated it would only approve an addition equal in square footage to the

current building. Doc.156-1 at 15. The square footage of the current building is

2,679 square feet.Id. If visual scale is the same as square footage (size), then

adding 2,679 square feet to the rear of the current building on one level while

going vertically five thousand feet would not have the same visual impact. The

12 The trial court adds this is not an issue in this case. However, this is exactly

the issue presented regarding what the HDC would allow.



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addition would add only 2,679 square feet, but would be much larger in visual

scale.

Logically, the HDC has no concern over how an architect divides up the

interior spaces of a building. The HDCs review is limited to the exterior visual

elements and nothing more. See Conn. Gen. Stat. 7-147f(b).

This Court held that when the agencys actions are arbitrary, capricious,

unlawful, or taken in bad faith, a substantial burden may be imposed because it

appears that the applicant may have been discriminated against on the basis of its

status as a religious institution. Westchester, 504 F.3d at 350-51;see alsoSts.

Constantine, 396 F.3d at 900. Significantly, a finding of arbitrary, capricious,

unlawful, or taken in bad faith is mutually exclusive. This Court did not hold each

of these findings must be evident. Rather, just one of these would support a finding

in the Chabads favor. At a minimum, a reversal is necessary for a trial.13

3. Final Decision

The illegal basis for the HDCs denial letter also foretells the Chabad will

not be granted a revised application. The HDCs denial was, in effect, an absolute

denial of the Chabads efforts to meet its religious obligations. Westchester, 504

F.3d at 352.

13 The Chabad also provided the trial court with briefing on the state courts

standards regarding the sufficiency of evidence. The HDC clearly failed to meet

the standards required when deciding an application. See Doc.137-1,pp.22-27.



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The HDCs denial states it would consider a new application, but states any

application would not be approved if the Chabad requests more than 2,679 square

feet. Doc.156-1 at 15 (citing DE # 137-6, Ex. A -- Nelson Aff., Ex 21, p. 6).

First, the limitation to 2,679 square feet is illogical. As discussed above, the

square feet limitation is not related to any exterior features and has no relation to

the visual scale of an addition.

Second, the limitation to 2,679 square feet is illegal. As discussed above, the

HDC is prohibited from regulating the architects interior design and arrangement.

Third, as discussed below, the government interest purportedly being

protected in this case the HDCs interest in retaining the historical residential

character is not even met by a limitation of square feet.

The HDCs denial cuts against this Courts jurisprudence concerning finality

and futility under RLUIPA. This Court previously recognized that where any

further application would be futile, the applicant is not required to continually

submit revised applications at great expense and in the face of almost sure

rejection. Westchester, 504 F.3d at 352.

The Chabads architect made each and every change requested by the HDC

and the HDCs architect to accommodate the HDCs demands. Doc.156-1 at 108.

At the fourth and final meeting, the HDC refused to identify any additional

concerns when asked. Doc.156-1 at 111.



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InFortress Bible, this Court held a renewed application would be futile

noting the Town continually rejected the Churchs attempts to accommodate its

stated concerns. The record easily supports the district courts finding that the

Towns actions amounted to a complete denial of the Churchs ability to construct

an adequate facility rather than a rejection of a specific building proposal. Slip

Op.,p.21, citing Westchester, 504 F.3d at 349.

This Court held a substantial burden may be shown where a religious

institution received less than even-handed treatment or where government

officials inconsistently applied specific policies and disregarded relevant findings

without explanation. Westchester, 504 F.3d at 351, quoting Guru Nanak, 456

F.3d at 981- 91.14

When a denial of an organizations request to expand facilities leave

organizations without alternatives, Westchester, 504 F.3d at 352, such decisions

place a significantly great restriction or onus on religious exercise, Guru Nanak,

456 F.3d at 988 (citation omitted), and therefore constitute a substantial burden on

religious exercise for the purposes of RLUIPA. In this case, the HDC has decided

with finality that it will not approve any addition more than 2,769 square feet. At a

minimum, the trial courts error on the legal analysis and error on the disputed

facts regarding substantial burden mandate reversal for a trial of these issues.

14 The HDCs arbitrary and inconsistently applied actions are documented in

Section IV.F.

Case: 12-1

chabad lubavitch of northwest connecticut appellants' initial brief - 110712 - ecf # 105

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