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12-1057(L)-cv,
12-1495 (Con)-cv In The

United States Court of Appeals for the Second Circuit

CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., and RABBI 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-Appellants One Goodwin Square Hartford, CT 06103-4303 Telephone: (860) 297-4662 Email: slater@halloran-sage.com

Frederick H. Nelson AMERICAN LIBERTIES INSTITUTE Counsel for Plaintiffs-Appellants P.O. Box 547503 Orlando, FL 32854-7503 Telephone: (407) 786-7007 Email: Rick@ali-usa.org

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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 of Litchfield 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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TABLE OF CONTENTS (CONT.) 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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TABLE OF CONTENTS (CONT.) 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 Fund v. 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.) Cottonwood Christian Center v. Cypress Redev. Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002) .............................................................29, 34 Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 US 872 (1990) .....................................................................................26, 27, 29 First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174 (Wash. 1992).................................................................................... 29 Ford v. D.C. 37 Union Local 1549, 579 F.3d 187 (2d Cir. 2009) (per curiam) ............................................................. 22 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) ............................................. 24, passim Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir. 1983) (per curium) .......................................................... 62 Guiles ex rel. Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006).............................................................................22, 47 Guru Nanak Sikh Socy of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) .....................................................................25, 26, 39 Hall v. Holder, 117 F.3d 1222 (11th Cir. 1997) ............................................................................. 51 Hoover v. Ronwin, 466 U.S. 558 (1984) ............................................................................................... 60 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) ........................................................................ 25

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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 (11th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) ........................................................................ 28 Mintz v. 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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TABLE OF AUTHORITIES (CONT.) 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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TABLE OF AUTHORITIES (CONT.) 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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TABLE OF AUTHORITIES (CONT.) 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. 121495-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 Needs The 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

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 Detail The Historic Survey of the Property was read into the HDC record. Doc.1561at 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 Additions Secular 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 Worship There 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

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

# 134.
5

The 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 Borough The 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 HDC HDC 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 Application The 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 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).
6

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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.1561 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 Application The 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

The Chabad presented plans and materials and answered the HDCs 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

The Chabad presented plans and materials and answered the HDCs 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

The Chabad presented plans and materials and answered the HDCs 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 Application The 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.7 The 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

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 a prima 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

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. See Guru Nanak [Sikh Socy of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 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. Both Fortress Bible and Westchester allowed 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 in Fortress 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

This Court cited with approval and followed the Seventh Circuits reasoning in Westchester, 504 F.3d at 350-351.
10

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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 (11th Cir. 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. In First 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 homes Batei 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. Unlike Fortress 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 in Fortress 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

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 Fund v. 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); Mintz v. Roman Catholic 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,
33

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The same facts presented in Fortress 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. In Fortress 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 Ami v. 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. 7147f(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

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.
12

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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 also Sts. 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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In Fortress 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. The HDCs arbitrary and inconsistently applied actions are documented in Section IV.F.
14

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POINT II THE EQUAL TERMS PROVISION A. The Law

The Equal Terms provision of RLUIPA Section 2(b)(1) is violated when an agency applies a regulation such that a religious assembly or institution is treated on less than equal terms with a nonreligious assembly or institution. 42 U.S.C. 2000cc(b)(1). RLUIPA Section 2(b)(1) recognizes at least three distinct types of Equal Terms violations: (1) a statute that facially differentiates between religious and nonreligious assemblies or institutions; (2) a facially neutral statute that is nevertheless gerrymandered to place a burden solely on religious, as opposed to nonreligious, assemblies or institutions; or (3) a truly neutral statute that is selectively enforced against religious, as opposed to nonreligious assemblies or institutions. Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty, 450 F.3d 1295, 1308 (11th Cir. 2006). The Chabad need not establish facts showing a substantial burden to succeed on a claim under RLUIPAs Equal Terms provision. See Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003). If there is unequal treatment, there is an RLUIPA violation even if there is not a substantial burden on the religious exercise as this is an independent protection. Id. The Chabad sought partial summary judgment only on the Equal Terms provision because the Substantial Burden facts are so much in dispute. At the time
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of filing, the Chabad believed the material facts were not in dispute. The trial court found disputed facts (as discussed below). If this Court does not believe the disputed facts are material, the Chabad requests that the trial court be reversed on the holding denying the Chabads Motion for Partial Summary Judgment on the Equal Terms provision (Doc.137) and granting the defendants motion. In the alternative, the Chabad requests this issue be returned to the trial court for trial. Under RLUIPAs Section 2(b)(1) Equal Terms provision, the courts look to any secular institution or assembly for a comparator. Primera Iglesia, 450 F.3d at 1308 (plaintiff must demonstrate unequal treatment as compared to any secular institution or assembly, according to its dictionary definition). In Konikov, the Eleventh Circuit stated: For purposes of a RLUIPA equal terms challenge, the standard for determining whether it is proper to compare a religious group to a nonreligious group is not whether one is similarly situated to the other, as in our familiar equal protection jurisprudence. Rather, the relevant natural perimeter for comparison is the category of assemblies and institutions as set forth by RLUIPA. In other words, the question is whether the land use regulation or its enforcement treats religious assemblies and institutions on less than equal terms with nonreligious assemblies and institutions. (emphasis supplied) Konikov, 410 F.3d at 1324 (citations omitted). Some courts differ when evaluating a comparator. Some courts adopt the plain meaning of the text. When a statutes language is plain, as the language in this statute is, the sole function of the courts is to enforce it according to its terms.

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Tanoh v. Dow Chemical Co., 561 F.3d 945, 953 (9th Cir. 2009). Some courts lift the bar to impose a similarly situated test. Courts that reject the similarly situated test point out such a test nullifies the Equal Terms provision. Thus, the similarly situated standard, by rendering an Equal Terms violation almost impossible to prove, forever immunizes municipalities from the reach of the provision. See Sarah Keeton Campbell, Restoring RLUIPAs Equal Terms Provision, 58 Duke L.J. 1071, 1103 (2009); Cf. Vision Church, 468 F.3d at 1002-03 (holding that Equal Terms test does not include a similarly situated requirement as in our familiar equal protection jurisprudence) with Lighthouse Inst., 510 F.3d at 266 (plaintiff must demonstrate unequal treatment as compared to secular institutions that are similarly situated as to the regulatory purpose). However, within the same case Judge Jordan noted in Lighthouse, No one has cited, and I am not aware of, any Supreme Court case holding that parties must demonstrate that they are similarly situated to someone else to establish a violation of the Free Exercise Clause. 510 F.3d at 293 (Jordan, J., dissenting). B. The Facts

The trial court held the comparators were not valid. A close look at the trial courts reasoning and the HDCs denial clarify why the comparators are valid.

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This is very significant and should not be overlooked. 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. Doc.156-1 at 9. The Chabad was denied because the HDC felt the changes would cause the Property to lose the historical residential character. Doc.156-1 at 10. The trial court appears to lose sight of the purported government interest. The HDC stated very clearly the government interest was to retain the historical residential character. Doc.156-1 at 9. The Equal Terms comparator in this case is whether or not the additions to the comparator properties retained the historical residential character of the comparator properties. At one point, the trial court seems to understand this is the argument being advanced, noting Chabad contends that each of these entities was permitted to build additions that changed the appearance from a residence to an institutional property and were very large in comparison to the original structure. Opin,p.17. 1. The Wolcott Library

Details discussing each fact related to the Library are in the record at Plaintiffs Local Rule Statement 56(a)(1) in support of the Chabads Motion for Partial Summary Judgment. Doc.137-2 at 11-25. In addition, the facts were

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presented to the trial court again in Plaintiffs Local Rule Statement 56(a)(2) opposing the defendants motion. Doc.156-1 at 120-123. In 1965, the Wolcott Library was allowed to make additions that caused it to lose its historical residential character. Doc.156-1 at 120. 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. Defendants failed to present any facts disputing the Chabads affidavits. There is no fact anywhere in the record where any witness testified the addition retained the historical residential character. In anticipation of this challenge, the HDCs denial compares the Chabads addition with the Librarys addition. Doc.137-6. The comparisons, however, clearly misrepresent reality. The HDCs denial falsely asserts the Library addition is hidden below and behind the colonial house. Photographic evidence clearly reveals the Library addition is plainly visible from the public street. Doc.137-2 at 16. 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. Both the Official Litchfield Assessors Card and the Librarys Site Plan show the Library addition extends beyond each side. Doc.137-2 at 19.

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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. The trial court held the facts regarding the Librarys addition are disputed, noting While the parties contest various attributes of the librarys addition, it is uncontested that the original building was built as a residence and that the addition is larger than the original structure. Opin,p.17. The issue presented is whether the addition met the stated governmental interest applied to the Chabads Property whether the addition retained the historical residential character of the property.15 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. The trial court invalidates the Library as a comparator on the assumption the preservation of historical residential character somehow changed in recent years. The Special Act created the historic district in 1959. And since 1959 the historic district has been regulated through the application and required approval process before changes are allowed. The timeline for historic preservation begins in 1959, not 1989. The Historic Survey reveals the Property had undergone major remodeling and most of the architectural details had been lost. Doc.156-1 at 53. See also Section IV.B.
15

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The following clarification is most significant. The trial court hits the reset button in 1989. However, there is no provision in the Special Act, or any subsequent regulation in any year, stating historic preservation may be ignored. The trial courts reasoning creates a distinction without a difference. Even accepting, arguendo, the trial courts reset in 1989, the trial court does not cite to any provision in any regulation stating historic preservation could 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 Library addition. The trial court erred again when discussing scale and size. The trial court erred by stating under the Special Act the Board was specifically prohibited from considering the size and scale of buildings. Opin,p.17. This finding is even contradicted by defendants own Local Rule 56(1) statement # 23 stating the 1959 Special Act was silent on whether the Special Act allowed consideration of scale. Doc.140-2 at 23. The Chabad also disputed this fact by referring the trial court to the Special Act. The Special Act states in part that [i]n passing upon the appropriateness, the warden and burgesses shall consider, in addition to any other pertinent factors, the historical and architectural value and significance, architectural style, general design, arrangement, texture and material of the exterior architectural features

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involved and the relationship thereof to the exterior architectural style and pertinent features of other structures in the immediate neighborhood. Doc.156-1 at 51. There is no statement anywhere in the Special Act prohibiting the consideration of scale. There is obvious confusion on this issue, but there is also evidence the facts are disputed. Clearly, the 1959 Special Act did not prohibit consideration of the scale of a building. As to the meaning of size, the trial courts decision uses the term size when referring to interior square footage. Opin,p.23 n.14. The Special Act prohibited consideration of the size. Likewise, the current law prohibits consideration of the size. See Conn. Gen. Stat. 7-147f(b): The commission shall not consider interior arrangement or use. At a minimum, the trial court went too far by deciding this disputed fact against the Chabad. This Court held that trial courts err by resolving disputed questions of fact instead of only determining whether, as to any material issue, a genuine factual dispute exists. See Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006). 2. The Rose Haven Home

The Chabad presented facts in an affidavit from one of the attorneys who represented it during the proceedings before the HDC. As a foundation for her affidavit, attorney Bearns states I conducted the research and prepared a substantial number of the Exhibits submitted to the HDC related to the Plaintiffs

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application for Certificate of Appropriateness. My statements are based upon my research and review of the official records. Doc.137-8 at 3. The affidavit is further supported by the Chabads Notice of Manual Filing. Doc.158,p.1. The Chabad manually filed the videos from each of the four HDC meetings where the exhibits and official records attorney Bearns relies upon were thoroughly discussed before being submitted into the HDCs official record. Doc.158,p.1.16 The trial court becomes distracted again and fails to consider the governments purported interest retaining the historical residential character. Instead, the trial court discusses facts relating to whether the addition was large and demanding the Chabad present evidence to support Bearnss assertions that the addition was substantially larger than the original structure. . . . Opin,p.20. The issue to compare is whether the addition caused Rose Haven to lose its historical residential character. Even defendants admit this is a subjective observation. HDC member Montebello testified that when the HDC makes a decision on an application, there is no right or wrong. Doc.156-1 at 42. 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. HDC members

The exhibits were further supported by an affidavit entering exhibits into the trial courts record along with the HDCs official records Exhibit List. The Exhibit List had been stipulated as true and accurate by all counsel. Doc.127-1,pp.1-2.
16

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disagree about whether or not an application should be approved or denied because each member has personal aesthetics opinions. Doc.156-1 at 23. The issue is the exterior appearance. Attorney Bearns is just as able as any other observer to testify that the addition to the residence changed the appearance from a residence to an institutional property. Doc.156-1 at 124. Defendants failed to present any facts disputing attorney Bearns affidavit. There is no fact anywhere in the record where any witness testified the addition retained the historical residential character. Yet, the trial court dismisses the Chabads facts regarding Rose Haven as inadmissible. Opin,p.19. The trial court appears to feel the affidavit from an observer of the exterior is not allowed to provide facts relating to the observation. 3. The Cramer and Anderson law firm

Again, the trial court errs for the same reasons it erred when reviewing Rose Haven. Attorney Bearns testimony is that the addition to the residence changed the appearance from a residence to an institutional property. Doc.156-1 at 125 (citing Ex. C -- Bearns Aff., 6). Defendants failed to present any facts disputing attorney Bearns affidavit. There is no fact anywhere in the record where any witness testified the addition retained the historical residential character.17

See also Section IV.C. Both attorney Herbst and attorney Bearns testify that other secular properties have expanded and built additions in the historic district that caused the residential property to become institutional through substantial
17

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POINT III THE NONDISCRIMINATION PROVISION A. The Law

Counsel has not located any case decided by this Court ruling on RLUIPA Section (b)(2). In some courts, RLUIPA Section (b)(2) analysis is compared with equal protection analysis.18 The Eleventh Circuit has identified three distinct kinds of statutory equal protection/nondiscrimination violations: (1) a statute that facially differentiates between religious assemblies or institutions; (2) a facially neutral statute that is nevertheless gerrymandered to place a burden solely on a particular religious assembly or institution; or (3) a truly neutral statute that is selectively enforced against one religious denomination as opposed to another. Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty, 450 F.3d 1295, 1308 (11th Cir. 2006). The Chabad asserts that the HDC has engaged in religious gerrymandering and selective enforcement of its requirements. See Section IV.D. above. A

renovations. Doc.156-1 at 44. Many of the properties 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. As discussed more fully below, equal protection and RLUIPA Section (b)(2) analysis is very closely related. In Fortress Bible this Court recently affirmed the equal protection class of one analysis. Fortress Bible, Slip Op.,p.29. That analysis has significance for the RLUIPA Section (b)(2) analysis given the cases review similar considerations.
18

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religious gerrymander that departs from basic principles of neutrality may support a RLUIPA violation. Primera Iglesia, 450 F.3d at 1309 (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993). A reasonable jury could find that the HDCs denial limiting the size of the Chabads addition to 2,769 square feet despite the HDCs knowledge, or at least the foreseeability, of the predictable negative effect on the Chabads effort to fulfill its religious mission, could support an inference of discriminatory intent. See Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983) (citing Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 464-65 (1979)). See also Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999); Hall v. Holder, 117 F.3d 1222, 1225-26 (11th Cir. 1997) (finding that intentional discrimination can be inferred from the circumstances surrounding the challenged government action where the facts are sufficiently compelling). A jury could construe the evidence of the HDCs abandonment of its own standards in conjunction with other evidence of differences in treatment so as to discern a discriminatory purpose behind the HDCs denial. See Jean v. Nelson, 711 F.2d at 1486 (citing United States v. Board of Commissioners of Indianapolis, 573 F.2d 400, 413 (7th Cir. 1978), cert. denied, 439 U.S. 824 (1978) (holding that a plaintiff can make out a prima facie case of discrimination by establishing that the

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government ignored less discriminatory options which would have furthered its policies as effectively as the more discriminatory option it chose)). Contemporaneous statements of the decision-makers made on the record during the HDCs meeting may be relevant to the jurys evaluation of the sequence of events and whether the evidence as a whole reflected a course of discriminatory conduct on the part of the HDC. See Reaching Hearts Intl., Inc. v. Prince Georges County, 584 F. Supp. 2d 766, 782-83 (D. Md. 2008), affd 368 F. Appx 370; see generally Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 (1977). B. The Facts

In the mid-eighties, the HDC granted a Certificate of Appropriateness allowing the church to apply vinyl siding. Doc.156-1 at 150. Vinyl siding does not comply with the HDCs standards for historic preservation. Doc.156-1 at 153. No other buildings in the district have vinyl siding. Doc.156-1 at 157. The HDC granted the request because it was trying to help the church save money. Doc.1561 at 156. The HDC denied the Chabads request to have the necessary space to fulfill its religious mission while granting the Congregational Churchs application to add 7,634 square feet. Doc.156-1 at 131. The Congregational Churchs addition alone

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is larger than the total size the HDC will permit the Chabad -- 6,000 square feet. Doc.156-1 at 15. The trial court refused to view the other churches as comparators by again misreading the considerations allowed by the Special Act. The trial court held that even if historic preservation was ignored, this fact does not meet the comparator standard for the single reason it was before 1989. Opin,p.26 n.16. Yet, this reasoning is simply contrary to the record and logic. As discussed above, the timeline for historic preservation begins in 1959. There is no provision in the Special Act, or any subsequent regulation in any year, stating historic preservation may be ignored.19 In essence, the trial court held that because the churches were already established before the Chabad arrived those churches could not be compared even when historic preservation was waived. In this reasoning, the Chabad is held to the standards while others are allowed waivers to save the church money. The Chabad supported the record by submitting photographs and official assessors cards for each of the churches providing evidence that the churches have abundant space to conduct their religious missions. Doc.156-3,pp.38-44; Doc.1564,pp.10-14; Doc.156-5,pp.3-7; Doc.156-6,pp.3-7.
19

Arbitrary application is common. 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.
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The Congregational Church has seating capacity for four hundred (400) people (Doc.156-1 at 140) but has average weekly attendance of one hundred seventy-five (175) people. Doc.156-1 at 141. The United Methodist Church has seating capacity for three hundred (300) people (Doc.156-1 at 147) but has average weekly attendance of twenty-eight (28) to thirty (30) people. Doc.156-1 at 148. The Chabad merely seeks to have an opportunity to meet the needs of its members and the community at large. The limitations imposed by the HDC prevent the Chabad from fulfilling that religious misson. Material questions exist regarding whether the Chabad has established a prima facie case of discrimination under RLUIPA Section (b)(2). POINT IV EQUAL PROTECTION The trial court gave little time to equal protection and summarily decided that because the prima facia evidence did not meet the trial courts analysis under Equal Terms and Nondiscrimination, no equal protection claim could advance. Opin,pp.26-27. As discussed above, the trial courts analysis under Equal Terms and Nondiscrimination is flawed and also misstates the record. As discussed below, the trial court failed to consider other equal protection analysis supported by the record in this case.

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A.

The Law

This Court has recognized two related species of equal protection claims not involving disparate treatment based upon membership in a protected class. See generally Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005). First, under Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the Chabad may pursue a class-ofone theory by establishing that it has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Id. at 564. In Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010), this Court held that class-of-one claims are available in cases where the state actor abuses the authority it derives under a regulatory scheme. In Fortress Bible, this Court reaffirmed its holding in Analytical. Fortress Bible, Slip Op.,p.29. In Analytical, the plaintiff argued that the New York State Department of Health had intentionally and maliciously subjected [it] to an intense and unwarranted degree of regulatory scrutiny. Analytical, 626 F.3d at 137. B. The Facts

In this case the Chabads architect made each and every change requested by the HDC and the HDCs architect to accommodate the HDCs demands. Doc.1561 at 108. At the fourth and final meeting, the HDC refused to identify any additional concerns when asked. Doc.156-1 at 111. Like the plaintiff in

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Analytical, the Chabad has been intentionally and maliciously subjected to an intense and unwarranted degree of regulatory scrutiny. Analytical, 626 F.3d at 137. This Court further found that the state defendant had not possessed unfettered discretion in exercising its regulatory prerogatives over the plaintiff. Analytical, 626 F.3d at 142. Here, the trial court found the HDC is not vested with unbridled discretion. Opin.p.32. This Court further held that multiple comparators could be used to support a class-of-one analysis. The Churchs use of multiple comparators is unusual, and presents us with a matter of first impression. Fortress Bible, Slip Op.,p.29. This Court accepted the analysis, holding Where, as here, the issues compared are discrete and not cumulative or affected by the character of the project as a whole, multiple comparators are sufficient so long as the issues being compared are so similar that differential treatment with regard to them cannot be explained by anything other than discrimination. Fortress Bible, Slip Op.,p.30. In this case, the HDC continued to impose new requirements for changes to the Chabads application at each meeting. At the last meeting, the HDC refused to identify any additional concerns when asked. Doc.156-1 at 111.

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POINT V CONSTITUTIONAL CLAIMS In deciding the constitutional claims, the trial court relied upon its prior analysis. A. Freedom of Speech

The trial court held: For the same reasons as stated above, see supra Section IV.A.3, Chabad does not raise a material issue of fact in support of its position, and the court finds as a matter of law that Chabad does not demonstrate a substantial burden. Consequently, defendants are entitled to summary judgment as to Count Two. Opin,p.30. B. Freedom of Association

The trial court held: As discussed above, see supra Section IV.A.3, Chabad cannot demonstrate a substantial burden on its associational rights, because any burden imposed is merely incidental to a neutral, generally applicable law, and there is no basis in the record upon which a reasonable jury could rest a finding that the HDCs decision was improperly based on Chabads religion. Consequently, defendants are entitled to summary judgment as to Count Three. Opin,pp.32-33.

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C.

Due Process

Based upon the prior analysis, the trial court held the regulations were not unconstitutionally vague and the HDC had not acted arbitrarily. Opin,pp.33-34. The trial court held: Consequently, Chabads claim that section 7-147f is unconstitutionally vague fails as a matter of law, and summary judgment is granted as to Count Five. Opin,p.34.20 POINT VI ORDER DISMISSING RABBI A. The Law

RLUIPAs definitions found at 42 U.S.C. 2000cc-5, state: (5) LAND USE REGULATION- The term land use regulation means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimants use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest. (7) RELIGIOUS EXERCISE - (B) RULE- The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

The trial court issued summary judgment on the claims against the individual defendants based upon its analysis no violations had occurred. The facts are disputed regarding the conversations between the HDC defendants and the context of those conversations with the attendant impact on the claims. Doc.157,pp.45-48.
20

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B.

The Facts

Pursuant to RLUIPAs definitions, the Rabbi has property interests at stake in this matter. The Third Amended Complaint and the Rabbis sworn deposition testimony clearly prove he has property interests at risk. The Third Amended Complaint states: This action is commenced by Plaintiffs to redress violations of their civil rights as protected by the United States and Connecticut Constitutions, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc, et seq., and the Connecticut Religious Freedom Act, Conn. Gen. Stat. 52-571b caused by the Defendants burdensome, discriminatory and unreasonable land use regulations and intentional conduct which have prohibited and continue to prohibit the Plaintiffs from building and operating a religious temple and facility that will include places of worship, religious educational facilities, childrens preschool and youth activities, libraries of Jewish texts, and accessory rabbinical housing dedicated solely to its fulltime rabbis use (hereinafter Temple) on a portion of the Plaintiffs Property in the Borough and Town of Litchfield, Connecticut (hereinafter, collectively, Town). Doc.54 at 1. The Rabbis sworn Declaration provides clear evidence supporting the Third Amended Complaint and his property interests at jeopardy in this matter. Doc.1171 at 10, 15. When questioned about his plans for the property at deposition, the sworn testimony reveals: Every church has a rectory thats usually connected, and God willing, our new facility at 85 West Street will have the same; the rectory will be a part of the building. Doc.117-2, p.2. As recited in the Third Amended Complaint, the plans for the property include accessory rabbinical housing

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dedicated solely to its full-time rabbis use. Doc.54 at 1. As the Rabbi for Chabad Lubavitch of Litchfield County, Inc., the Rectory/Parsonage/Residence belongs to Rabbi Eisenbach. Doc.117-1 at 10. In addition, the Rabbi has an option to exercise a mortgage lien on the 85 West Street Property. Doc.117-1 at 15. The trial court held the Rabbi did not have a property interest. Doc.151,p.5. The trial courts evidentiary standard was that the Rabbi had not established by a preponderance that this interest is a property interest, as required by RLUIPA. Doc.151,p.6 n.4. In deciding the motion, the trial court stated the standard of review as: In assessing a motion to dismiss for lack of subject matter jurisdiction, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff. (citing Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006)). Doc.151,p.3. The trial court added it takes the allegations of the Amended Complaint as true and construes them in a manner favorable to the plaintiffs. See, e.g., Hoover v. Ronwin, 466 U.S. 558, 587 (1984); Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002). The court must draw all reasonable inferences in the plaintiffs favor. See, e.g., Yung v. Lee, 432 F.3d 142, 146 (2d Cir. 2005). Doc.151,p.4.

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The standard of review the trial court cited was not the standard applied. The trial court demanded a preponderance of the evidence. Doc.151,p.6 n.4. Where jurisdiction is challenged solely on the pleadings and supporting affidavits, the plaintiff need only make a prima 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. There is nothing in the record controverting the Rabbis sworn Declaration stating his property interest. Under the definitions found in RLUIPA, the Rabbi clearly has property interests which exist because he has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest. 42 U.S.C. 2000cc-5(5). Congress sought to assure that all property interests would be protected by inserting several possible property interests, including the phrase other property interest to assure discriminatory acts would not go unchecked. Because the Rabbi clearly has property interests at stake, he has standing to assert claims under RLUIPA.21 The Rabbi also has independent constitutional claims. In Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318 (9th Cir. 1989), the court held that even where the direct and independent injury done to the shareholder plaintiff arises The trial court applied the same analysis to the Connecticut Religious Freedom Act (CRFA) claims. Doc.151,p.6.
21

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from the same conduct as that which injured the corporation, the shareholder may still have a distinct claim. 874 F.2d at 1319 (citing Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir. 1983) (per curium)); Marshall v. Kleppe, 637 F.2d 1217, 1222 (9th Cir. 1980)); see also Shell Petroleum, N.V. v. Graves, 709 F.2d 593, 595 (9th Cir. 1983), cert. denied, 464 U.S. 1012 (1983). The trial court held that it applied the same standards to dismiss the Rabbis constitutional claims as it applied to dismiss the Rabbis RLUIPA and CRFA claims. Doc.151,p.7. In Sorranos Gasco, the officer plaintiff presented a direct and independent claim under the First Amendment, claiming that the defendants actions against the corporation were taken in retaliation for the officers criticism of the defendants policies and practices. 874 F.2d at 1313, 1319. Also, one need not suffer monetary damage to prevail in an action for denial of civil rights. Chahal v. Paine Webber Inc., 725 F.2d 20, 24 (2d Cir. 1984) (citation omitted.) Where a plaintiff alleges he suffered from loss of his own rights, he has standing to assert those rights independent from the corporations interests. The Rabbi seeks to protect his personal civil and constitutional rights. The Rabbis personal civil and constitutional rights are clearly expressed in the Third Amended Complaint and reiterated in the sworn Declaration mirroring the allegations. Doc.117-1 at 2, 5, 9, 11. See Sorranos Gasco, 874 F.2d at

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1314; RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045 (9th Cir. 2002) (where complaint sought damages for plaintiffs as individuals, and also alleged violations of their First and Fourteenth Amendment rights as individuals, plaintiffs had standing to assert a civil rights claim). The Third Amended Complaint alleges violations of the rights of the Rabbis right individually that are separate and distinct injuries to the Rabbi. Therefore, even if the Rabbis injuries arose from the same conduct as the corporate injuries, it does not preclude a finding of direct and independent injury to the Rabbi for standing purposes. See Sorranos Gasco, 874 F.2d at 1314. The Rabbi also respectfully requested the trial court to schedule a hearing on the matter, if necessary to resolve the evidentiary issues or clarify arguments. See Compania Del Bajo Caroni (Caromin), C.A. v. Bolivarian Republic of Venezuela, 341 Fed. Appx. 722, 726 (2d Cir. 2009). The Rabbi also respectfully requested the trial court to allowed amendment to clarify his individual claims if it were found the Rabbi had not clearly enough presented his personal claims. See Rule 15, Federal Rules of Civil Procedure. The trial court rejected both these requests. The Rabbi respectfully request this Court to reverse the trial courts dismissal of his claims from this case and remand to allow him to present his claims. The trial court had already dismissed the Rabbi prior to briefing on summary judgment. The Rabbi has never been permitted an opportunity to present

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his own individual claims. The Rabbi respectfully requests this Court to reverse and remand for further proceedings on the Rabbis claims.

CONCLUSION Based upon the foregoing, the trial courts order of June 21, 2012 (DE # 151) should be reversed to the extent appealed from, and the trial courts order of February 17, 2012 (DE # 169), and the Final Judgment entered on February 21, 2012 (DE # 170), should be reversed in their entirety and the case remanded to the trial court for trial. Dated: Orlando, Florida November 7, 2012

Respectfully submitted,

AMERICAN LIBERTIES INSTITUTE Attorneys for Chabad Lubavitch of Litchfield County, Inc., and Rabbi Joseph Eisenbach

By:

/s/Frederick H. Nelson Frederick H. Nelson, Esq. Counsel for Plaintiffs-Appellants P.O. Box 547503 Orlando, FL 32854-7503 Telephone: (407) 786-7007

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CERTIFICATE OF COMPLIANCE This brief complies with type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) as it contains 13,717 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief complies with typeface requirements of Federal Rule of Appellate Procedure 32(a)(5)(A) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) as it has been prepared in a proportionately spaced typeface using Microsoft Office Word in 14 point Times New Roman font with footnote text of 14 point Times New Roman font. Dated: Orlando, Florida November 7, 2012

Respectfully submitted,

AMERICAN LIBERTIES INSTITUTE Attorneys for Chabad Lubavitch of Litchfield County, Inc., and Rabbi Joseph Eisenbach By: /s/Frederick H. Nelson Frederick H. Nelson, Esq. Counsel for Plaintiffs-Appellants P.O. Box 547503 Orlando, FL 32854-7503 Telephone: (407) 786-7007

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CERTIFICATION OF SERVICE This is to certify on this date a copy of the foregoing Page Proof Brief For Plaintiffs-Appellants has been served, pursuant to Federal Rule of Appellate Procedure 25, via the CM/ECF Case Filing System. All counsel of record in this case are registered CM/ECF users. Filing and service were performed by direction of counsel. Kenneth R. Slater, Jr., Esq. (slater@halloran-sage.com) Trial Counsel for Plaintiffs-Appellants H. James Stredonsky, Esq. (hjs@stedlaw.com) Trial Counsel for Defendants-Appellees Wendy Kuhne, Glenn Hillman and Kathleen Crawford C. Scott Schwefel, Esq. (SSchwefel@shipso.com) Trial Counsel for Defendants-Appellees

Dated:

Orlando, Florida November 7, 2012 By: /s/Frederick H. Nelson Frederick H. Nelson, Esq. Counsel for Plaintiffs-Appellants P.O. Box 547503 Orlando, FL 32854-7503 Telephone: (407) 786-7007

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