Posted by: Patricia Salkin | February 4, 2012

Connecticut Superior Court Reverses Board’s Findings of Land Use Violations Where Only Distinction was Which Religious Denomination Was Using the Property

The premise at issue was previously owned by American Baptist Churches of Connecticut.  The land was zoned and used for religious services, non-profit administrative offices, and residential facilities.  The Baptist Church sold the property to Chabad Chevra after the city’s planning division performed an inspection.  Subsequently the zoning enforcement officer “ZEO” issued a cease and desist order to Chabad Chevra for several purported violations including: changing and expanding the use from non-profit offices to residential use and use as a student center; expanding the religious use for non-employees; and creating a mixed use of residential and student center where none of these changed uses were permitted.  The cease and desist order was affirmed by the board, and Chabad Chevra appealed to the Superior Court of Connecticut arguing that the decision was not supported by sufficient evidence.  

The court began by establishing its standard of review.  The court recognizes that it must uphold the board’s decisions so long as it is “reasonably supported by the record.”  The court noted, however, that the evidence “must be substantial.”  The court examined Chabad Chevra’s argument that the prior use of the property is substantially similar to the intended uses and finds it meritorious.  The court examined the evidence, including documentation and testimony from hearings, and found that the property has been used for religious purposes both before and after Chabad Chevra’s purchase.  The court dismissed the town’s arguments that the main purpose of the property was a student center and explicitly found that the premise is used mainly for religious purposes.  Further, any temporary residential use is permitted because the Baptist Church also used the property for limited residential purposes.  The “only apparent distinction” explained the court “is their religion, Christianity and Judaism.”  

The court concluded that the evidence did not support the board’s determination that the property was not used for religious purposes.  Even if the town attempted to base its cease and desist order on the actual use of the premise, that would fail, explained the court, because the ZEO failed to present any evidence of an inspection subsequent to Chabas Chevra’s purchase of the property.  Thus, the court held that the board’s decision was not supported by substantial evidence.  

Chabad Chevra, LLC v. Hartford, 2011 WL 7029763 (Conn. Super. Ct. 12/15/2011) 

The opinion can be accessed at:


  1. Apart from her single sentence concluding that “the only apparent distinction between the activities of the prior owner and Chabad Chevra is their religion,” Judge Kahn did not explore the constitutional and federal law issues that this case implicated. That is because she was able to easily conclude that under state law, the Zoning Board of Appeals had not met the standard of basing its decision on substantial evidence in the record, so she did not have to go any further.

    Given the judge’s findings, this case also implicated federal constitutional guarantees of equal treatment and free exercise of religion.

    It appears from the opinion that the city was concerned most about an increase in the intensity of the use that would come from having University of Hartford students using the Chabad Chevra’s property regularly.
    But as the judge found, the students, and any other visitors using the property, would be doing so for religious purposes – as had visitors when the property was own by a Christian group. Students don’t get any less protection under the constitution than any other group in when government interferes with the practice of their religion.

    There was no evidence in this case that Chabad Chevra would use the property any differently than the American Baptist Church of Connecticut, so the ZBA’s denial clearly violated the 14th Amendment’s guarantee of equal protection. Furthermore, even had the city presented evidence that increased use or other factors would increase the nonconforming use, under the Religious Freedom Restoration Act, it still would have had to show that its enforcement action against the property was narrowly tailored to serve a compelling state interest. Although concerns about traffic from more people coming to and from the Chabad Chevra might be compelling, a cease-and-desist order that bars all religious use is not narrowly tailored in any way. And because the evidence showed the city was more restrictive against one religion, the enforcement action, although based on a rule of general applicability – another requirement of RFRA – was not applied to all property owners the same way.

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