Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield, Civil Action No. 3:09–CV–1419 (JCH).

• Decision Date: 17 February 2012
• Docket Number: Civil Action No. 3:09–CV–1419 (JCH).
• Citation: 853 F.Supp.2d 214
• Court: U.S. District Court — District of Connecticut
• Parties: CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., Plaintiff, v. BOROUGH OF LITCHFIELD, CONNECTICUT, et al., Defendants.

853 F.Supp.2d 214

CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., Plaintiff,

v.BOROUGH OF LITCHFIELD, CONNECTICUT, et al., Defendants.

Civil Action No. 3:09–CV–1419 (JCH).

United States District Court,

D. Connecticut.

Feb. 17, 2012.

Frederick Nelson, American Liberties Institute, Orlando, FL, Thomas C. Blatchley, Kenneth R. Slater, Jr., Halloran & Sage, Hartford, CT, for Plaintiff.

Charles Scott Schwefel, Shipman Sosensky & Marks LLC, Farmington, CT, Marci A. Hamilton, Washington Crossing, PA, Mark S. Shipman, Shipman Sosensky & Marks LLC, Mary Catherine Curran, Shipman Sosensky & Marks LLC, Farmington, CT, Thomas R. Gerarde, Howd & Ludorf, Hartford, CT, for Defendants.

RULING RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 138, 140) AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. NO. 137)

JANET C. HALL, District Judge.

I. INTRODUCTION

Plaintiff, Chabad Lubavitch of Litchfield County, Inc. (“Chabad”), brings this action against defendants, the Borough of Litchfield, Connecticut (“the Borough”) and the Historic District Commission of the Borough (“the HDC”) (collectively, “Borough defendants”); and Wendy Kuhne, Glenn Hillman, and Kathleen Crawford, members of the HDC (collectively, “individual defendants”), for declaratory relief and damages for injuries plaintiff allegedly sustained as a result of the discriminatory activity of defendants.

Defendants have filed two separate motions for summary judgment. The Borough defendants seek summary judgment as to all counts against them, Counts One through Eight, Eleven, and Twelve (Doc. No. 140). The individual defendants filed a separate Motion for Summary Judgment (Doc. No. 138) on all counts against them.¹ In addition, Chabad filed a Motion for Partial Summary Judgment as to Count Eight (Doc. No. 137).

II. STATEMENT OF FACTS²

The Borough of Litchfield is an independent municipal corporation, whose boundaries are wholly within the Town of Litchfield. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 10; Pl.'s L.R. 56(a)(2) Stmt. Supporting Pl.'s Opp. to Borough of Litchfield and Historic District Commission of the Borough of Litchfield ¶ 10 (hereafter “Pl.'s Borough L.R. 56(a)(2) Stmt.”). The Borough is governed by a municipal charter adopted in 1989, pursuant to the Connecticut General Statutes. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 10; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 10. Since 1978, the Borough of Litchfield has been enrolled in the National Register of Historic Places. See Borough Defs.' Mem., Ex. D, Attachment 5. In addition, the National Park Service has described Litchfield as “[p]robably the finest surviving example of a typical late 18th century New England town.” See id., Ex. D, Attachment 6.

In 1989, pursuant to the provisions of Chapter 97a of the Connecticut General Statutes §§ 7–147a et seq., the Borough established the Historic District Commission (hereafter “HDC”) to govern aspects of the construction and modification of buildings within the Litchfield Historic District. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 11; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 11. Pursuant to the authority granted in section 7–147c(e) of the Connecticut General Statutes, the HDC adopted regulations which set forth the criteria by which it would judge applications. See Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 12; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 12. In addition, the HDC also adopted the criteria set forth in the Secretary of the Interior's Standards for Rehabilitating Historic Buildings. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 14; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 14.

Rabbi Joseph Eisenbach is an ordained Hasidic Rabbi and is the President of the plaintiff, Chabad Lubavitch of Litchfield County, Inc. ³ Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 1; Pl.'s Borough L.R. 56(a)(2) Stmt. at ¶ 1. Rabbi Eisenbach is a member of the Chabad. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 2; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 2. Currently, Chabad holds weekly religious services at a rented location in a Litchfield shopping center; however, Chabad alleges that its current space is inadequate to carry out its religious practices. Borough Defs.' L.R. 56(a)(1) Stmt. ¶¶ 4–6; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶¶ 4–6.

Chabad purchased property at 85 West Street, Litchfield, Connecticut. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 8; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 8. The property was constructed in the late 1870s, as a two story, stick-style Victorian residential house, consisting of approximately 2600 square feet, plus a basement. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 24; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 24. The house is commonly known as the “Deming House.” Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 25; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 25. The property was originally residential; however, it was rezoned to commercial property in 1971. Pl.'s L.R. 56(a)(1) Stmt. ¶ 38; Defs.' L.R. 56(a)(2) Stmt. ¶ 38.

After it purchased the property, Chabad filed an application for a certificate of appropriateness with the HDC. Borough Defs.' L.R. 56(a)(1) Stmt. ¶¶ 9, 11; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶¶ 9, 11. Through its proposed facility, Chabad seeks to serve the needs of the community; host prayer, religious ceremonies, religious education; and provide living quarters for Rabbi Eisenbach and his family, and a guest apartment. See Pl.'s L.R. 56(a)(1) Stmt. ¶¶ 6–8; Defs.' L.R. 56(a)(2) Stmt. ¶¶ 6–8. Chabad's proposal would add a three story, 17,000 square foot addition to the Deming House. See Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 26; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 26. ⁴ A fourth floor is a sub-basement level set completely below ground. The guest apartment is in part of the third,⁵ attic floor.

The parties contest much of what occurred during the hearing process after Chabad submitted its application, including which commissioners actually voted on the application.⁶See Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 37; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 37. It is clear, however, that the HDC voted unanimously to deny the motion without prejudice, and it invited Chabad to resubmit its application with a proposal that provided for an addition no larger than the original house on the property. See Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 36; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 36. Chabad did not resubmit its application. See Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 49; Pl.'s Borough L.R. 56(a)(2) Stmt. ¶ 49.

III. STANDARD OF REVIEW

A motion for summary judgment “may properly be granted ... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Id. In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp. 582 F.3d 268, 274 (2d Cir.2009).

“[T]he moving party bears the burden of showing that he or she is entitled to summary judgment.” United Transp. Union v. Nat'l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). Once the moving party has satisfied that burden, in order to defeat the motion, “the party opposing summary judgment ... must set forth ‘specific facts' demonstrating that there is ‘a genuine issue for trial.’ ” Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)). In determining whether a triable issue of fact exists, the court may only rely on admissible evidence. See ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 357 (2d Cir.1997). Where the opposing party relies on affidavits or declarations, the affidavit or declaration “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on matters stated.” Fed. R. Civ. Pro. 56(c)(4). “A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (stating that a non-moving party must point to more than a mere “scintilla” of evidence in order to defeat a motion for summary judgment).

IV. DISCUSSIONA. Substantial Burden (Counts One, Six, and Twelve)

1. Constitutional and Statutory Principles

The Free Exercise Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const. Amdt. 1. Religious exercise not only includes the exercise of religious beliefs, but “the performance of (or abstention from) physical acts” pertaining to religion as well. See Emp't Div. Dep't of Human Res. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Where the object of a law is to restrict particular practices because of their religious motivation, the law is subject to strict scrutiny and, therefore, must be justified by a compelling government interest and narrowly tailored to advance that interest. See Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 533, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Where the law is neutral and of general applicability, however, the law does not need to be justified by a compelling government interest, even if the effect of the law is to incidentally burden a particularreligion or religious practice. See id. at 531, 113 S.Ct. 2217;Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 350 (2d Cir.2007...