Posted by: Patricia Salkin | September 23, 2014

Second Circuit Court of Appeals Revives RLUIPA Lawsuit

Editors Note: This posting is reprinted with permission from the RLUIPA Defense Blog at:

On September 19, 2014, the Second Circuit issued its decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (2d Cir. 2014), reversing the lower court’s entry of summary judgment in favor of the Borough of Litchfield concerning some of its claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The case involves Chabad’s attempt to expand a building it purchased in the Borough’s Historic District to accommodate its religious mission. The Borough states that Chabad’s “proposed modifications called for a 17,000-square foot addition . . . , including administrative offices, classrooms, a nearly 5,000 square-foot residence for Rabbi Eisenbach and his family, an indoor swimming pool, guest accommodations, kitchens, and a ritual bath.” The Borough’s Historic District Commission denied Chabad’s application.

Chabad sued under RLUIPA’s substantial burden, equal-terms, and nondiscrimination provisions. It also brought claims under the U.S. Constitution and state law.

The U.S. District Court for the District of Connecticut granted summary judgment in favor of the Borough. It concluded that Chabad’s substantial burden claim failed because Connecticut’s statutory scheme pertaining to the modification of property in a historic district (C.G.S. § 7-147a et seq.) is a neutral law of general applicability. It also found that Chabad’s equal-terms and nondiscrimination claims failed because Chabad had not established valid comparators. The District Court rejected Chabad’s remaining constitutional and state law claims for many of the same reasons.

The Second Circuit reversed the District Court’s entry of summary judgment on the substantial burden and nondiscrimination claims. It concluded that even though § 7-147a’s statutory scheme may be neutral and generally applicable, it constituted an “individualized assessment” and therefore invoked the substantial burden provision’s jurisdictional hook. In so ruling, the Second Circuit rejected the District Court’s holding that laws of neutral and general applicability, as a matter of law, cannot impose a substantial burden on religious exercise under RLUIPA.
Although the Second Circuit remanded the case to the District Court for consideration of whether the Borough’s actions substantially burdened Chabad’s religious exercise, it provided some guidance as to the factors that should be considered:

Westchester Day School enumerates some of the factors that may be considered to determine whether a substantial burden is imposed, including whether the law is neutral and generally applicable. In conducting the substantial burden analysis, we considered several factors. See 504 F.3d at 352 (stating that the “arbitrary and unlawful nature” of defendant’s conduct “support[ed]” a substantial burden claim, while also looking to “other factors”); see also Fortress Bible Church, 694 F.3d at 219 (finding that arbitrary and capricious application of land use regulation “bolstered” a substantial burden claim). In addition to the arbitrariness of a denial, our multifaceted analysis considered whether the denial was conditional; if so, whether the condition was itself a substantial burden; and whether the plaintiff had ready alternatives. . . . see also Fortress Bible Church, 694 F.3d at 219 (considering whether rejection of land use application denied plaintiff the “ability to construct an adequate facility” for its religious exercise, or was merely a “rejection of a specific building proposal”). Our sister circuits have contributed additional texture to this analysis. See, e.g., Bethel World Outreach Ministries, 706 F.3d at 558 (weighing whether plaintiff had “reasonable expectation” of receiving approval to build church when it bought property and deeming it “significant that the [defendant] has completely prevented [the plaintiff] from building any church on its property”); Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (considering as a factor whether plaintiff “bought property reasonably expecting to obtain a permit,” particularly when alternative sites were available); Midrash Sephardi, Inc., 366 F.3d at 1228 (deeming it significant that the plaintiff could operate a church “only a few blocks from” its preferred location).
The Second Circuit – which had never before interpreted RLUIPA’s nondiscrimination provision – reversed the District Court’s entry of summary judgment in favor of the Borough on this issue. It determined that the District Court erred by bypassing circumstantial evidence that could have supported Chabad’s claim of discrimination and considering only Chabad’s cited comparators. The Second Circuit joined its sister circuits in looking to equal protection precedent to evaluate nondiscrimination claims. It decided that “establishing a claim under RLUIPA’s nondiscrimination provision, as with the Supreme Court’s equal protection precedent, requires evidence of ‘discriminatory intent.’” Because the District Court did not look beyond religious comparators, the Second Circuit vacated the granting of summary judgment on this claim, and remanded for consideration of whether Chabad had established a prima facie case.

The remainder of Chabad’s claims on appeal were rejected, largely due to Chabad’s failure to adequately brief them. The Second Circuit did, however, reverse the District Court’s dismissal of Rabbi Eisenbach’s claims for lack of standing, finding that he had met the constitutional requirements of Article III standing, since he alleged that he intended to live at the proposed facilities.

Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, 2014 WL 4652510 (2nd Cir. 9/19/2014)

The opinion can be accessed at:

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