Whether they are seeking to build a church or mosque along a wooded stretch of suburban homes or next to a stately historic New England green, religious organizations of all denominations have long argued they should be permitted to do so free from discrimination.
Since the federal Religious Land Use and Institutionalized Persons Act was passed into law in 2000, lawsuits claiming land use discrimination have been stacking up in Connecticut; there are at least four claims or appeals pending, including a new lawsuit filed July 7 on behalf of a proposed synagogue in Greenwich.
The Greenwich Reform Synagogue Inc. is challenging a June denial by the Greenwich Planning & Zoning Board of Appeals of its request to build a $6 million, 12,000-square-foot synagogue on Orchard Street.
The 120 families who belong to the congregation, represented by John Slane Jr. of Heagney, Lennon & Slane, filed the lawsuit in U.S. District Court in New Haven. In support of its discrimination claim, the Jewish congregation says in its complaint that no other religious group has ever been denied a permit to build in the town. Their lawsuit alleges violations of RLUIPA, which states a government “cannot impose a standard burden” on a religious institution unless officials can prove “a compelling government interest.”
Nationally, courts have for the most part been reluctant to grant RLUIPA claims. The cases are highly fact-specific when it comes to determining what constitutes “a compelling governmental interest” sufficient to prevent a religious group from building in any location, regardless of its zoning. In Connecticut, most, but not all, efforts by religious groups to win approval of building projects using RLUIPA have been shot down.
Still, municipalities have found the balancing act to be a delicate one. Consider a pending case in Easton, in Fairfield County.
A group called the New England Prayer Center wanted to build a house of worship in a residential neighborhood. Neighborhood residents raised concerns about parking near the proposed center, and wanted town officials to put limits on the how big the parking lot could be and where it might be located. But ultimately, the Christian organization entered into a lease/option-to-buy agreement with the town that had no parking restrictions.
The town Planning & Zoning Commission, in approving the plans, stated “that it must fairly interpret the law so as not to run afoul” of RLUIPA. Residents took the case to the state Appellate Court, where this month the judges ruled that adjusting parking plans would not impose “unreasonable burdens” on the religious applicant. They sent the case back to the Easton zoning commission for reconsideration.
The prevalence of RLUIPA cases have caught the attention of land use lawyers from practices large and small. A couple years ago, Dwight Merriam, of Robinson & Cole in Hartford, created RLUIPA Defense, a blog which tracks cases and identifies scholarly articles that focus on “avoiding and defending against claims taken under RLUIPA.”
“It seems RLUIPA is the hot thing right now,” said Michael Ceccorulli, of Pullman & Comley’s land use practice group. “I’ve been following the cases.”
If there is a typical RLUIPA case, it goes something like this: A religious group either proposes the construction of a new house of worship or it plans to acquire and renovate, and often to expand, an existing structure. Neighbors of the proposed church, synagogue, mosque or temple turn out at public meetings, voicing concerns about traffic, parking or noise. The Christian, Jewish, Muslim or other group often replies that the complaints are just thinly veiled expressions of religious intolerance. (In a RLUIPA case in Litchfield, for instance, a Jewish group claimed that a member of a town governmental body remarked that a Star of David didn’t belong on the Litchfield Green.)
So far, Ceccorulli’s own involvement with RLUIPA has been peripheral. He has represented telecommunications providers and utility companies entering contracts with churches or other religious organizations with regard to placing cell towers on property owned by the churches or religious groups. When working on those, Ceccorulli has done research on RLUIPA, to be prepared in case of any disputes.
While the law was designed to make it easier for religious groups to gain local government approval for new construction, it by no means created a surefire legal solution. That has been clear by a number of recent RLUIPA cases in Connecticut.
The first of those to be litigated involved a proposed Buddhist temple proposed in Newtown. The Cambodian Buddhist Society of Connecticut, and its president, Pong Me, challenged a decision of Newtown’s planning and zoning commission, which denied the society’s application for a special exception zoning permit after neighbors complained about the potential danger posed by heavy traffic on a relatively narrow and windy road.
The case made its way to the Connecticut Supreme Court, which in 2008 rejected the Buddhist society’s RLUIPA and state law challenge. The justices found that the “substantial burden” provision in the RLUIPA law did not apply to “neutral and generally applicable land use regulations that are intended to protect public health and safety.”
There are at least two other pending RLUIPA lawsuits in Connecticut. One has been filed against Litchfield’s Historic District Commission by Chabad Lubavitch of Northwestern Connecticut, which is seeking to buy an existing building and expand it to include a synagogue and community center. The other has been filed against Norwalk by the Al Madany Islamic Center, which is seeking to build a mosque and a community center.
In both cases, residents have complained about the proposed size of the facilities, and have suggested that scaled-back plans might be better received.
Because RLUIPA cases can get complicated, with aspects of both land use and constitutional law in play, parties on both sides of the dispute have typically brought in outside counsel familiar with the nuances of the law.
For example, Marci Hamilton, the Paul R. Verkuil Chair of Public Law at the Benjamin N. Cardozo School of Law at Yeshiva University in New York, has been called on to work defending zoning boards in several Connecticut cases. Hamilton is part of the litigation team representing Norwalk in the Al Madany Islamic Center case after having previously represented Litchfield in the Chabad case.
“We are seeing more RLUIPA cases in Connecticut, New Jersey, the Northeast in general, because where there is higher population density, there are a lot more land use lawyers who look for creative ways to have uses for religious purposes approved,” Hamilton said. “There are more RLUIPA lawsuits where there is more developed land. Which is why there are more cases in Connecticut than you might expect, for its size.”
There is also, she acknowledged, less undeveloped space in mixed-use zoning areas for religious organizations to buy. As a result, churches, mosques and synagogues try to locate where they can, which often means in areas zoned primarily for residential use.
The Al Madany case began in 2012 when the zoning commission found the proposed mosque and multipurpose hall, among other things, were “out of scale” for a largely residential neighborhood. After the Islamic group filed its lawsuit, the court ordered mediation. The next status conference is scheduled for later this summer. “We’re still in the process of discussing a settlement and it’s going to take additional time,” Mario Coppola, Norwalk’s corporation counsel, recently said in a published report.
In the Litchfield case, Chabad Lubavitch’s plans met with a setback in February, when U.S. District Judge Janet Hall granted a motion for summary judgment against the organization. Chabad, which is appealing the decision to the U.S. Court of Appeals for the Second Circuit, is seeking to expand a building in the Litchfield historic district from 2,500 square feet to 20,000 square feet.
Hall found Litchfield’s rejection of the proposal hinged on the square footage of the proposal, not its use. “Chabad has failed to point to a secular property in the [Litchfield] historic district that was treated more favorably than Chabad,” Hall wrote.
The plaintiffs in the Greenwich synagogue lawsuit will hope to get further than that. In its complaint, the congregation accuses the town of unequal treatment of places of worship in the same area and within residential zoning districts. “Two other houses of worship are located in the area,” the lawsuit states. “Greenwich Baptist Church and the United Baptist Church.”•