United States District Court, D. Connecticut
CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., et al., Plaintiffs,
BOROUGH OF LITCHFIELD, CONNECTICUT, et al., Defendants.
RULING RE: DEFENDANTS GLENN HILLMAN AND KATHLEEN
CRAWFORD'S MOTION FOR SUMMARY JUDGMENT (DOC. NO.
C. HALL UNITED STATES DISTRICT JUDGE.
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”), 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.
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).
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.
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.
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
(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
(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).
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. 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
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.
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).
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).
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.
Need to assure that the individual can perform his
functions without harassment or intimidation
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.
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