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Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic Dist. Comm'n

United States Court of Appeals, Second Circuit

September 19, 2014

CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., JOSEPH EISENBACH, Plaintiffs-Appellants-Cross-Appellees, UNITED STATES OF AMERICA, Plaintiff,
v.
LITCHFIELD HISTORIC DISTRICT COMMISSION, BOROUGH OF LITCHFIELD, CONNECTICUT, GLENN HILLMAN, KATHLEEN CRAWFORD, Defendants-Appellees-Cross-Appellants, TOWN OF LITCHFIELD, CONNECTICUT, DOE, POLICE DOG, WENDY KUHNE, Defendants. [*]

Argued September 16, 2013

As Amended September 22, 2014.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Chabad Lubavitch of Litchfield County, Inc. (" Chabad" ) appeals from the February 21, 2012 judgment of the United States District Court for the District of Connecticut (Hall, C.J.) denying its motion for partial summary judgment and granting the defendants' motion for summary judgment on each of the Chabad's claims, brought pursuant to 42 U.S.C. § § 1983, 1985, and 1986; the Religious Land Use and Institutionalized Persons Act (" RLUIPA" ), 42 U.S.C. § 2000cc et seq. ; and Connecticut state law, and stemming from the denial of the Chabad's application to alter its property, located in the Borough of Litchfield's historic district. Because we conclude that the district court applied erroneous legal standards to the Chabad's claims under RLUIPA's substantial burden and nondiscrimination provisions, we VACATE the grant of summary judgment in the defendants' favor on these claims and REMAND them for further consideration consistent with this opinion. By contrast, we AFFIRM the grant of summary judgment in the defendants' favor on the remainder of the Chabad's claims, largely due to the Chabad's failure adequately to brief these claims. Rabbi Joseph Eisenbach (" Rabbi Eisenbach" ) appeals from the June 20, 2011 order of the district court dismissing his claims, coextensive with the Chabad's, for lack of standing. Because we conclude that the district court erred in finding that Rabbi Eisenbach lacked standing under RLUIPA, we VACATE the dismissal of his claims on that ground and REMAND for consideration whether he nonetheless failed to state a claim. However, we AFFIRM the dismissal of Rabbi Eisenbach's remaining claims for failure adequately to brief these claims. Accordingly, the February 21, 2012 judgment is VACATED AND REMANDED IN PART and AFFIRMED IN PART, and the June 20, 2011 order is VACATED AND REMANDED IN PART and AFFIRMED IN PART.

FREDERICK H. NELSON (Kenneth R. Slater, Jr., Halloran & Sage, LLP, Hartford, CT, on the brief), American Liberties Institute, Orlando, FL, for Plaintiffs-Appellants-Cross-Appellees.

C. SCOTT SCHWEFEL, Shipman, Shaiken & Schwefel LLC, West Hartford, CT, for Defendants-Appellees-Cross-Appellants Litchfield Historic Commission and Borough of Litchfield, Connecticut.

JAMES STEDRONSKY, Stedronsky & D'Andrea, LLC, Litchfield, CT, for Defendants-Appellees-Cross-Appellants Glenn Hillman and Kathleen Crawford.

April J. Anderson, Jessica Dunsay Silver, U.S. Department of Justice, Civil Rights Division, Washington, DC, for Amicus Curiae United States of America.

Kevin T. Snider, Pacific Justice Institute, Sacramento, CA, for Amicus Curiae Pacific Justice Institute.

Before: WALKER, LIVINGSTON, and CHIN, Circuit Judges.

OPINION

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Debra Ann Livingston, Circuit Judge :

The Chabad Lubavitch of Litchfield County, Inc. (" Chabad" ), a Connecticut membership corporation founded and currently presided over by Rabbi Joseph Eisenbach (" Rabbi Eisenbach" ), purchased property in the Borough of Litchfield's Historic District with the intention of expanding the existing building on the property to accommodate the Chabad's religious mission. Pursuant to Connecticut state law, the Chabad applied to the Borough of Litchfield's Historic District Commission (" HDC" ) for leave to undertake its desired modifications. However, following multiple meetings on and amendments to the Chabad's proposal, the HDC denied the application with leave to submit an amended proposal consistent with enumerated conditions. In this ensuing suit, the Chabad and Rabbi Eisenbach (collectively, the " plaintiffs" ) assert that the Borough of Litchfield, the HDC, and HDC members Glenn Hillman (" Hillman" ) and Kathleen Crawford (" Crawford" ) (collectively, the " defendants" ) abridged their rights under 42 U.S.C. § § 1983, 1985, and 1986; the Religious Land Use and Institutionalized Persons Act (" RLUIPA" ), 42 U.S.C. § 2000cc et seq.; and Connecticut state law by denying the application.[1] They seek damages, injunctive and declaratory relief, attorneys' fees, and the appointment of a federal monitor.

On the defendants' motion to dismiss for lack of subject matter jurisdiction, the district court (Hall, C.J.) dismissed Rabbi Eisenbach's claims for lack of standing, citing the Rabbi's want of a sufficient property interest under RLUIPA and his failure to distinguish his claims from the Chabad's under federal and state law. Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield, 796 F.Supp.2d 333, 338-39 (D. Conn. 2011) [hereinafter Chabad I ]. Subsequently, following the Chabad's motion for partial summary judgment and the defendants' motion for summary judgment, the district court ruled in favor of the defendants. Significantly, the district court concluded that Connecticut's statutory scheme governing historic districts is " neutral and generally applicable" and, consequently, that the HDC's denial of the Chabad's application could not " as a matter

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of law" impose a substantial burden on the Chabad's religious exercise under RLUIPA's substantial burden provision. Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield, 853 F.Supp.2d 214, 225 (D. Conn. 2012) [hereinafter Chabad II ]. The district court also held that the Chabad's failure to identify a religious institution that was more favorably treated than and " identical in all relevant respects" to the Chabad barred the Chabad's claim under RLUIPA's nondiscrimination provision. Chabad II, 853 F.Supp.2d at 229-31.

On appeal, we conclude that the district court erred in dismissing Rabbi Eisenbach's RLUIPA claims for lack of standing. Accordingly, we vacate the district court's June 20, 2011 ruling insofar as it concerns Rabbi Eisenbach's standing under RLUIPA and remand for consideration, instead, whether Rabbi Eisenbach failed to state a claim under RLUIPA. We affirm the remainder of that judgment due to Rabbi Eisenbach's failure to brief his remaining claims. Additionally, we conclude that the HDC's review of the Chabad's application was an " individual assessment" subject to RLUIPA's substantial burden provision and that the Chabad need not cite an " identical" comparator to establish a claim under RLUIPA's nondiscriminaton provision. Accordingly, we vacate the district court's February 21, 2012 judgment insofar as it concerned these RLUIPA claims and remand for consideration whether these claims survive summary judgment under an analysis consistent with this opinion. We affirm the remainder of the district court's February 21, 2012 judgment, albeit largely due to the Chabad's failure to brief most of its remaining claims.

BACKGROUND

A. Facts[2]

The Chabad, a Connecticut membership corporation, and Rabbi Eisenbach, president of the Chabad, offer weekly religious and other services to its Orthodox Hasidic parishioners in the Litchfield area. Prior to the events at issue, the Chabad rented space to provide these services, at a cost of thousands of dollars per year. Deeming the rented space inadequate to practice its faith and accommodate its religious mission, the Chabad in 2005 purchased a property at 85 West Street in the Borough of Litchfield to serve as its new place of worship. The property, located in the Litchfield Historic District -- once deemed to be " [p]robably the finest surviving example of a typical late 18th century New England town" -- boasts a two-story, " stick-style" Victorian residence constructed in the 1870s encompassing 2,600 square feet and a basement. Known as the " Deming House," the building was constructed as a residence by the grandson of a prominent Revolutionary War-era Litchfield resident but, by the time of the Chabad's purchase, had been altered to accommodate a commercial establishment.

In accordance with Connecticut's statutory scheme governing development in historic districts, the Chabad sought leave to alter 85 West Street to meet its needs. Specifically, Connecticut General Statutes § 7-147d(a) directs that " [n]o building or structure shall be erected or altered within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been

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submitted to the historic district commission and approved by said commission." [3] The HDC, established in 1989 pursuant to this scheme, reviews such applications for the Litchfield Historic District. The Connecticut General Statutes empower the HDC to approve or deny applications following notice and a public hearing, see id. § § 7-147c, 7-147e, and direct that, when weighing applications to alter exterior architectural features, the HDC consider, " in addition to any other pertinent factors, the historical and architectural value and significance, architectural style, scale, general design, arrangement, texture and material of the architectural features involved and the relationship thereof to the exterior architectural style and pertinent features of other buildings and structures in the immediate neighborhood," id. § 7-147f(a).

The HDC first considered the Chabad's application at a pre-hearing meeting on September 6, 2007. The defendants assert that the Chabad's proposed modifications called for a 17,000-square-foot addition to be built at 85 West Street, 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. Though the Chabad disputes the defendants' characterization of its proposed expansion, it does not specify a smaller footprint. In addition, the Chabad sought to top the property with a clock tower featuring the Star of David and to incorporate several external elements that would restore some of the property's period details. The Chabad contends that, at that meeting, HDC member Wendy Kuhne (" Kuhne" ) voiced her opposition to its application, due in part to the size of the addition and her belief that the Star of David was not " historically compatible with the [Historic] District." Other HDC members, including Crawford, also expressed concerns regarding the size of the addition, with one member urging that " [w]e have to get the public out on this project for the public hearing." At the conclusion of the meeting, the HDC scheduled a second pre-hearing meeting for the following month.

At the second meeting, held on October 18, 2007, the Chabad announced its changes in response to the requested modifications, which included altering the shape of windows and lowering the roof line of the addition. Following the Chabad's presentation, Kuhne commented, " [I]s this all there is?" J.A. 747. Though the Chabad did not object to Kuhne's comments at the meeting, it later requested that she recuse herself from the public meetings and decisionmaking process, which she did. The HDC then bifurcated the hearing process concerning the Chabad's application, reserving the first hearing to address the Chabad's proposed modifications and the second to address whether denial of the Chabad's application would place a " substantial burden" on its religious exercise. Following the first public hearing, held on November 15, 2007, the Chabad altered its proposal to, among other changes, lower the foundation of its addition, use alternative exterior building material, reduce the height of the Star of David finial atop the clock tower, and reconstruct a front porch that had been removed during an earlier renovation. At the second hearing, held on December 17, 2007, the Chabad asserted its need for a larger structure, but did not disclose the

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size of its assembly or the number of students likely to attend ...


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