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Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield

United States District Court, D. Connecticut

September 29, 2016





         Plaintiffs, the Chabad Lubavitch of Litchfield County, Inc. (“the Chabad”) and Rabbi Joseph Eisenbach, filed a Third Amended Complaint against the Borough of Litchfield, Connecticut, the Historic District Commission of the Borough (“the HDC”), and HDC members Wendy Kuhne (“Kuhne”)[1], Glenn Hillman (“Hillman”), and Kathleen Crawford (“Crawford”). Only Counts Six and Seven of the Third Amended Complaint remain. Both remaining counts allege violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc et seq.

         Hillman and Crawford have moved for summary judgment on both counts on the ground that they are entitled to quasi-judicial absolute immunity. See Defendants Glenn Hillman and Kathleen Crawford's Motion for Summary Judgment at 1-2 (Doc. No. 229).


         The Borough of Litchfield is an independent municipal corporation, whose boundaries are wholly within the Town of Litchfield. See Rule 56(a)(1) Statement of Facts in Support of the Individual Defendants' Motion for Summary Judgment re: Absolute Immunity ¶ 7 (Doc. No. 229-2) (“L.R. 56(a)(1) Stmt.”). The Borough is governed by a municipal charter adopted in 1989, pursuant to the Connecticut General Statutes. Id. Pursuant to the provisions of Chapter 97a of title 7 of the Connecticut General Statutes, C.G.S.A. §§ 7-147a et seq., the HDC governs aspects of the construction and modification of buildings within the Litchfield Historic District. Id. ¶ 8; see also C.G.S.A. § 7-147a. Anyone seeking to erect or alter a structure within the Litchfield Historic District must receive a certificate of appropriateness from the HDC before commencing construction. See C.G.S.A. § 7-147d(a). Section 7-147c(e) of title 7 of the Connecticut General Statutes permits the HDC to adopt regulations which set forth the criteria by which it would judge applications. See L.R. 56(a)(1) Stmt. ¶ 9; see also C.G.S.A. § 7-147c(e).

         Seeking to alter and add to a building it purchased within the Litchfield Historic District, the Chabad applied for a certificate of appropriateness in 2007. See generally L.R. 56(a)(1) Stmt. ¶¶ 14 - 27. The HDC held a series of public hearings in connection with the Chabad's application; it ultimately denied the Chabad's application without prejudice. See id.


         As the parties seeking quasi-judicial absolute immunity, Hillman and Crawford bear the burden of demonstrating that they are entitled to such immunity. See Gross v. Rell, 585 F.3d 72, 88 (2d Cir. 2009). “[F]ederal law on quasi-judicial immunity applies to state officials sued in federal court on federal claims, ” as is the case here. Id. at 81. The Supreme Court has articulated six factors that courts must consider in determining whether a governmental official is entitled to absolute immunity. The factors are:

(a) the need to assure that the individual can perform his functions without harassment or intimidation;
(b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct;
(c) insulation from political influence;
(d) the importance of precedent;
(e) the adversary nature of the process; and
(f) the correctability of error on appeal.

Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz v. Economou, 438 U.S. 478 (1978)). This “[i]mmunity analysis is ‘functional' and scrutinizes the actual responsibilities of the government official in question in light of six factors.” Tulloch v. Coughlin, 50 F.3d 114, 116 (2d Cir. 1995). Quasi-judicial absolute immunity is “rare and exceptional.” Cleavinger, 474 U.S. at 202. “[Q]ualified immunity represents the norm” for executive officials. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

         In this Circuit, the question of whether local board or commission members may receive federal quasi-judicial immunity for land use decisions appears to have only been addressed a few times and only at the district court level.[2] The Western District of New York refused to grant quasi-judicial immunity to members of a village board of trustees in deciding a zoning dispute. See Altaire Builders, Inc. v. Vill. of Horseheads, 551 F.Supp. 1066, 1073 (W.D.N.Y. 1982). The court in Altaire noted that zoning has not traditionally been characterized as a judicial function. Id. at 1073. The court refused to grant immunity despite the fact that the village board provided notice, held a hearing which was required by law, considered evidence offered by both sides, and made findings of fact and conclusions. See id. at 1071. The Altaire court stated:

The nature of the hearing required by the zoning ordinance is not the adjudicative hearing conducted in a judicial or quasi-judicial forum. It is a public hearing, and its function encompasses a variety of objectives. It is designed to inform the Trustees of the merits of the proposal. It is also intended to inform the public and to allow the Trustees to determine the public's response to the proposal and, in particular, the response of landowners as to the effect of the proposal on their interests. While evidence is received, it is clearly not subject to the rules of evidence, and may in fact be rife with hearsay, conjecture and speculation, but is nonetheless acceptable for the purpose of gauging public opinion.

Id. at 1072. The Southern District of New York expressly adopted Altaire's reasoning, and held that members of a Village Board of Zoning Appeals lacked judicial immunity. See Rodrigues v. Vill. of Larchmont, N.Y., 608 F.Supp. 467, 475-76 (S.D.N.Y. 1985).[3]

         The Third Circuit, on the other hand, has granted quasi-judicial immunity to members of a board of supervisors, in connection with a zoning decision. See Dotzel v. Ashbridge, 438 F.3d 320, 327 (3d Cir. 2006). The Third Circuit granted immunity in part because, “zoning disputes can be among the most fractious issues faced by municipalities, and the risk of threats and harassment is great.” Id. at 325. The Ninth Circuit has similarly granted quasi-judicial immunity to members of a state (rather than local) growth management hearing board for its rulings on zoning appeals. See Buckles v. King Cty., 191 F.3d 1127, 1136 (9th Cir. 1999).[4]

         On the other hand, the Ninth Circuit has held that state land conservation and development commissioners did not act in a judicial capacity under Butz when they issued an order that resulted in property being rezoned. See Zamsky v. Hansell, 933 F.2d 677, 679 (9th Cir. 1991). Additionally, the First Circuit refused to recognize judicial immunity for town planning board members for their imposition of conditions on the development of a proposed subdivision. See Cutting v. Muzzey, 724 F.2d 259, 262 (1st Cir. 1984). The Fifth Circuit has also refused to recognize quasi-judicial immunity for city council members for their denial of a land development plan application. See Da Vinci Inv., Ltd. P'ship v. Parker, 622 F. App'x 367, 374 (5th Cir. 2015).


         The court will first address the Cleavinger factors individually. In reaching a decision, however, this court will consider the relative importance of each factor in the context of the case.

         A. Need to assure that the individual can perform his functions without harassment or intimidation

         While it is axiomatic that no one relishes the prospect of being sued, this factor focuses on whether absolute immunity is required to assure HDC members that they can perform their duties without fear of harassment or intimidation. Both Hillman and Crawford have stated, under oath, that being sued by the Chabad has impacted their performance on the HDC. See Affidavit of Glenn Hillman ¶¶ 15-17 (Doc. No. 229 App. GG) (“Hillman Aff.”); Affidavit of Kathleen Crawford ¶¶ 8, 10 (Doc. No. 229 App. HH) (“Crawford Aff.”). Additionally, Leon Losee, the Warden of the Borough of Litchfield, attests that, since the commencement of this lawsuit, the Board of Warden and Burgesses, which is the body responsible for appointing HDC members, has had a significantly more difficult time filling vacancies on the HDC. See Affidavit of Leone Losee ¶¶ 6-8, 10 (Doc. No. 229 App. FF) (“Losee Aff.”). Although the Chabad does not dispute these assertions, the fact remains that these statements are somewhat conclusory. For example, Warden Losee does not provide the rate of declination or absolute number of declinations, before and after the commencement of this lawsuit. See id. Furthermore, the record reflects that Hillman and Crawford did not resign after the commencement of this lawsuit but rather, continued to serve. See Hillman Aff. ¶ 1; Crawford Aff. ¶ 1.

         The record also contains other uncontested facts that evidence that HDC members will be able to serve without fear of harassment or intimidation, even without the benefit of absolute immunity. It is undisputed that, “[a]fter hundreds of applications, this case is the only [one] identified in which any members of the [HDC] have been sued.” Memorandum in Opposition to Individuals' Motion for Summary Judgment Dated February 24, 2016 at 8 (Doc. No. 230) (“Pls.' Mem. in Opp'n”). The fact that, historically speaking, applicants before the HDC do not resort to suing individual HDC members as a result of an adverse decision by the HDC militates against the conclusion that absolute immunity is required to shield HDC members from harassment and intimidation. For example, in Cleavinger, the Supreme Court denied members of a federal prison's Institution Discipline Committee quasi-judicial absolute immunity despite acknowledging “that many inmates do not refrain from harassment and intimidation, ” as evidenced by “[t]he number of nonmeritorious prisoners' cases that come to this Court's notice.” Cleavinger, 474 U.S. at 502. However, in Tulloch, the court concluded that this factor weighed in favor of granting a state prison disciplinary officer quasi-judicial absolute immunity because “[p]rison disciplinary hearings are often fraught with emotion and ill-will, and prisoners are a group prone to litigation.” Tulloch, 50 F.3d at 116. Similarly, in Young v. Selsky, the court noted, in connection with this factor, that, “the plaintiff in this case has abused the district court's resources in the past by engaging in a pattern of vexatious litigation. Such inmates, if unchecked, could seriously undermine defendant's ability to function as an independent reviewer.” Young v. Selsky, 41 F.3d 47, 53 (2d Cir. 1994). As already noted, these cases are easily distinguishable from the case at bar because there is nothing to ...

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