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

United States District Court, D. Connecticut

November 1, 2017



          Janet C. Hall United States District Judge.


         This is an action brought by the plaintiff, Chabad Lubavitch of Litchfield County, Inc. (“the Chabad”), pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), title 42, sections 2000cc et seq of the United States Code. This action arises out of a denial of an application for a Certificate of Appropriateness made by the Chabad to the Historic District Commission of the Borough of Litchfield (the “Commission”). The Chabad alleges that this denial substantially burdened its religious exercise, in violation of RLUIPA's “Substantial Burden” provision. The defendants, the Commission and the Borough of Litchfield, deny this allegation.

         The court is painfully aware of the delicate role it must play in adjudicating a case where the plaintiff is a religious organization expressing the view that all of its proposed uses are religious exercise and that any facility smaller than the one proposed would substantially burden that religious exercise, and the defendants are governmental bodies seeking to preserve the historic character of their town. In some respects, this case presents the court with a circumstance akin to that faced by Odysseus when he traversed the narrow waters between Scylla and Charybdis, here freedom of religion on one side and non-establishment of religion on the other.


         A. Procedural History

         The Chabad commenced this action to challenge the denial of its application for a certificate of appropriateness by the defendants, which was issued on December 20, 2007. In its initial Complaint, the Chabad asserted Free Exercise, Free Speech, and Freedom of Association claims under the First and Fourteenth Amendments; Due Process and Equal Protections claims under the Fourteenth Amendment; and Substantial Burden, Nondiscrimination, and Equal Terms claims under RLUIPA. The Chabad also alleged Civil Conspiracy under title 42, section 1985(3) of the United States Code; Failure to Prevent Violations and Civil Conspiracy under title 42, section 1986 of the United States Code; claims under the Connecticut State Constitution; and a Free Exercise claim under the Connecticut Religious Freedom Act, title 52, section 571b of the Connecticut General Statutes.

         The original suit was brought by the Chabad and Rabbi Joseph Eisenbach, founder and current leader of the Chabad Lubavitch of Litchfield County, against the Commission, the Town of Litchfield, several members of the Commission in their individual and official capacities, and several Doe defendants. By the Third Amended Complaint, however, the plaintiffs had dropped their claims against the Town of Litchfield and the Doe defendants.

         This court granted summary judgment in favor of the defendants on all claims. See Chabad Lubavitch v. Borough of Litchfield, 796 F.Supp.2d 333 (D.Conn. 2011). The Chabad appealed that judgment and the Second Circuit remanded the case, vacating the judgment with respect to two of the claims: the Substantial Burden claim and the Nondiscrimination claim. See Chabad Lubavitch v. Litchfield Historic Dist., 768 F.3d 183 (2d Cir. 2014) (hereinafter Chabad App'l).

         The Second Circuit dismissed all claims against one of the Commission members, Wendy Kuhne. See id. at note 1. The plaintiffs subsequently voluntarily withdrew all claims against the other two Commission members, Glenn Hillman and Kathleen Crawford. On the eve of trial, Rabbi Eisenbach voluntarily withdrew from the case as a plaintiff, following the court's Ruling on a Motion in Limine that evidence of damages was inadmissible. Because that Ruling eliminated all legal claims, the remaining plaintiff, the Chabad, had no right to a trial by jury. Therefore, by the time trial commenced, the case had evolved from a two-plaintiff, twelve-defendant, twelve-count action to an action by a single plaintiff against two defendants on one claim for injunctive relief: Substantial Burden under RLUIPA.

         B. The Trial

         This action was tried to the court over a three day period. The Chabad presented six witnesses:

         1. Rabbi Schmuel Klatzkin, a rabbi with Chabad of Greater Dayton, who testified as an expert witness about the history of Chabad Lubavitch and its current practices.

         2. Glenn Hillman, then-Clerk and now-Chair of the Commission, and co-author of the written opinion denying the Chabad's application for a certificate of appropriateness.

         3. Judith Acerbi, one of the members of the Commission who denied the Chabad's application.

         4. Peter Bugryn, an architect who worked with the Chabad, after the Commission's denial, to develop plans for the purposes of a special use permit to use the 85 West Street property as a place of worship.

         5. Joseph Montebello, one of the members of the Commission who denied the Chabad's application.

         6. Rabbi Joseph Eisenbach, the founder and leader of the Chabad, who testified as an expert about the Chabad Lubavitch movement and testified as a fact witness about his experience as the Chabad emissary in the Litchfield area, the needs of his Chabad community, and the application for a certificate of appropriateness.

         After the Chabad rested, the defendants presented one witness, architect Wayne Garrick. Mr. Garrick presented an alternate plan for the Chabad's addition, which plan he was commissioned to develop by the Commission.

         Over the course of the trial, the court admitted into evidence 31 exhibits, including photographs of the property, assessor cards of the 85 West Street property and nearby properties, the plans that were presented to the Commission and several alternate sets of plans, and video clips of the public hearings held on the Chabad's proposal.

         At trial, the Chabad argued that all the uses of the proposed construction were religious exercise, at least in part, and that its proposal represented the minimum size necessary to accommodate its religious exercise. Furthermore, the Chabad argued that the Commission was disingenuous in articulating conditions under which a revised proposal would be accepted, and that the denial should therefore be interpreted as an absolute denial of any construction or modification of property at 85 West Street.

         The defendants argued that the denial was not disingenuous, that several proposed uses--the rabbi's residence, the staff residence, and the indoor swimming pool--were not intended for religious exercise, and that, in any event, it would not be a substantial burden on the Chabad's religious exercise to locate the rabbi's residence and the staff residence in a nearby location. In short, the defendants argued that the denial was, at most, an inconvenience, not a substantial burden.


         A. History of Chabad Lubavitch

         Chabad Lubavitch is an Orthodox Jewish movement that dates back to the 18th century. Founded in Russia, Chabad's mission, then and now, is to revitalize the Orthodox Jewish community. Although followers of Chabad came to the United States as early as the 18th Century, Chabad as a movement came to the United States at the beginning of World War II when the then-leader of Chabad Lubavitch, Rabbi Yosef Yitzchak Schneersohn, emigrated to the United States and settled in the Crown Heights neighborhood of Brooklyn.

         Rabbi Schneersohn was succeeded in leadership of the Chabad movement by his son-in-law, Rabbi Menachem Mendel Schneerson (“Rabbi Schneerson”). Rabbi Schneerson is considered the last great leader of the Chabad movement. Many of the practices and principles of the Chabad movement today are rooted in the teachings and writings of Rabbi Schneerson.

         Among his contributions to Chabad, Rabbi Schneerson spearheaded a practice of sending Chabad couples, known as emissaries, into areas where Orthodox Judaism was not already widely practiced. Chabad emissaries are located across the U.S. and around the world, from India to Cuba.

         Rabbi Schneerson also taught that members of the Chabad community should infuse all elements of their lives with religiosity, in part as a way to attract more people to the faith. He encouraged followers to make “every house a Chabad House, ” meaning that the practices of daily living and the home environment should reflect and facilitate the teachings of Judaism. It is one of Rabbi Schneerson's core teachings that what God desires most is “a home which is distinguished by observance”: “That [Judaism] is not just a hat you put on one day a week or an hour a day, but it's the nature of your whole life, especially where you live, that it is infused with Jewish values and ideas and practice.” Tr. 1 at 40 (testimony of Rabbi Klatzkin).

         In addition to the general idea that followers of Chabad Lubavitch should be observant within their homes, rabbi's homes are important places for sharing meals in the home. Being invited to a rabbi's home for Shabbat or a holiday meal has special significance within the Chabad faith.

         Rabbi Schneerson also emphasized the importance of connecting children to the faith. To that end, Rabbi Schneerson spearheaded the development of “Gan Israel” summer camps, which are in large part recruiting tools for attracting young people who are unaffiliated with Orthodox Judaism. Secular activities at the camp draw in children and families who would not be interested in a purely religious camp, and thus facilitate recruitment.

         Because one of the primary goals of the Chabad Lubavitch movement is to grow the faith, Rabbi Schneerson taught that Chabad followers should always do as much as they can for the faith, and should always be expanding their efforts. In other words, the view is: if you are able to build a Chabad House with ten rooms that is better than one with eight, but twelve rooms would be better. Chabad emissaries will never complete their work, but are instead tasked with growing their communities in perpetuity.

         Although the above principles apply broadly to all Chabads, another tenet of the Chabad movement is that each individual community has unique needs. It is the role of the emissaries, the Rabbi and his wife, to spend time assessing the needs of the community they serve, and ultimately to develop a Chabad House that meets the needs of their individual Chabad community. The Chabad's view of “religious necessity” is therefore in large part driven by the needs of the community and the determinations of the Rabbi and his wife as opposed to the Chabad Lubavitch movement writ large.

         B. Chabad Lubavitch of Litchfield County

         The Chabad Lubavitch of Litchfield County, Inc. (“the Chabad”) was incorporated as a religious, non-profit corporation in 1996. It was founded and continues to be led by Rabbi Joseph Eisenbach, a Chabad emissary who, with his wife, was called to bring the Chabad movement to the Litchfield, Connecticut, area.

         The Chabad was first located in Lake Ridge, Connecticut but, in 1998, the Chabad purchased a rectory in Litchfield, in a condo community known as the Litchfield Ponds. Although the Chabad initially had its shul on the ground floor of the Litchfield Ponds property and the Eisenbach family lived above it, that space soon became insufficient for the needs of both Rabbi Eisenbach's family and the Litchfield Chabad community.

         The Chabad subsequently rented various spaces around Litchfield for weekly worship services and religious classes, including two different spaces in the same strip mall alongside a Dunkin Donuts store. The Chabad also rented event spaces and other facilities for High Holidays, such as Yom Kippur, and for running Gan Israel camps each summer.

         At the same time that the Chabad purchased the Litchfield Ponds property, the Chabad was searching for a permanent location in the Litchfield area that would accommodate all the needs of the Chabad community and Rabbi Eisenbach's family. Rabbi Eisenbach looked at several properties other than the 85 West Street property. However, of the other properties he looked at, only one other property was suitable for the Chabad's needs. These needs included both sufficient space as well as a prominent, central location in town. In essence, the presence of the Chabad House / shul in a central location is part of the Chabad's outreach.

         Generally speaking, there are limited properties in the central downtown district of Litchfield. Among such downtown locations, the only other property that was on the market when the Chabad was looking for a permanent location that was large enough to accommodate the Chabad's needs was the West Street Grille, which is near the Julia Deming House on the north side of West Street. The Chabad made an offer on that property, but was informed, upon making the offer, that it was no longer available.

         Then, in 2005, a Chabad parishioner, Adam Greenberg, purchased the property at 85 West Street in Litchfield, with the intention of selling it to the Chabad, which he ultimately did.

         The 85 West Street property is located within an historic district known as the Borough of Litchfield (“the Borough”). The Borough is an independent municipal corporation whose boundaries are entirely within the Town of Litchfield. The Borough is governed by a municipal charter adopted in 1989, pursuant to the Connecticut General Statutes. In 1989, pursuant to the provisions of Chapter 97a of title 7 of the Connecticut General Statutes, the Borough established the Historic District Commission (the “Commission”) to govern aspects of the construction and modification of buildings located within the Borough. Specifically, Connecticut General Statutes section 7-147(d) states: “No building or structure shall be erected or altered within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the historic district commission and approved by said commission.” Section 7-147c(e) of title 7 of the Connecticut General Statutes permits the Commission to adopt regulations setting forth the criteria by which to judge applications. In deciding whether to grant a certificate of appropriateness, the Commission may not consider a building's “interior arrangement or use.” C.G.S.A. § 7-147f(b).

         C. The Chabad's Proposed Modifications to the 85 West Street Property

         In acquiring the 85 West Street property, it was never the Chabad's intention to operate out of the existing structure, but instead to build an addition on the existing structure. To that end, in 2006 the Chabad began working with several architectural firms in the area to develop plans for an addition. The Chabad also consulted with personnel at the Planning and Zoning Commission of Litchfield to determine how large it could build an addition without violating local zoning regulations. Further, Rabbi Eisenbach also observed the size and types of structures in the vicinity of the Deming House. As a result of these consultations and observations, the Chabad commissioned a set of plans by architect Michael Boe (the “Boe plans”), which were designed to cover almost all (ninety-five percent) of the allowable lot coverage for construction.

         The exterior of the Boe plans contain several modifications to the existing structure. Most notably, the Boe plans propose adding Jerusalem stone to the foundation of the building and around the exterior of the Shul, adding a clock tower on top of the building, and mounting a finial with a Star of David on top of the clock tower.

         In terms of interior design, the Boe plans propose an addition that, when added to the original structure, would result in a building with a footprint of 4, 941 square feet and approximately 20, 200 square feet of interior space. The proposed structure would contain four stories and a sloped roof attic, with one story located entirely below grade, another story partially above and partially below-grade (due in part to the downward slope of the property as one moves from the front of the property to the back), and two stories and a partial attic entirely above-grade.

         1. The Sub-Basement

         The lowest level of the Boe plans, which will be referred to here as the sub-basement, contains a swimming pool and a ritual bath, known as a mikvah; restrooms associated with the mikvah; locker rooms associated with the swimming pool; and a mechanical room.[2]

         The swimming pool would be used primarily for the Gan Israel summer camp that the Chabad has run in the past and intends to run in the future. Given that there is no public pool in Litchfield, the Chabad spends thousands of dollars every summer busing campers to public pools or renting private pools.

         At trial, Rabbi Katzkin testified that a pool would be an asset for his own Chabad, in Dayton, Ohio, specifically for its Gan Israel camp. However, he also testified that, of the roughly fifty Chabads he had visited, he did not recall any that had an indoor pool. When asked whether the pool itself would actually be religious exercise, Rabbi Klatzkin gave the following response:

Aside from the idea of -- that we're looking to establish a sense of a community that is doing all the things together. The summer camps, which was -- one of [Rabbi Schneerson]'s big initiative [sic] was the Gan Israel Summer Camp chain, we find to be extraordinarily effective because the kids are with each other for a long period in the day. And there's a sense of developing a community not just in terms of you're doing a specific religious exercise, but the general sense of a community that's cohering with each other.

Tr. 1 at 78.

         Rabbi Eisenbach described the purpose of the swimming pool for his campers similarly. In essence, he described a swimming pool as a recruitment tool for the Gan Israel camp and for Chabad Lubavitch in general. “[S]o many who will not go to a Hebrew school or a shul have no issue coming to a place where there's swimming, karate and tennis.” Trial Transcript of July 27, 2017 (“Tr. 3”) (Doc. No. 318) at 95. The Chabad's use of the pool would be for convenience and recreational swimming.

         2. The Basement

         The level above the sub-basement, referred to here as the basement, contains seven classrooms, a library, and a preschool area. As described above, the basement is located partially below- and partially above-ground, partly due to the fact that the 85 West Street property slopes downward slightly as one moves from the street to the rear of the property.

         The Chabad uses classrooms solely for religious education, and frequently uses multiple classrooms simultaneously. As Rabbi Eisenbach testified:

[C]lassrooms are essential because at the same time you could be having Hebrew school, you can have someone else teaching someone for a Bar Mitzvah or you can have someone being counseled by another member of the community. So Chabads traditionally have multiple classrooms in order to be able to have continuous programs running simultaneously.

Tr. 2 at 177.

         It is important for the Chabad to have its classrooms located within the Chabad House. Chabad Houses typically serve a centralizing purpose, bringing together a wide range of religious programming including religious services, education, and fellowship, and thus usually contain classrooms. The Chabad has lost parishioners since 2007 because it has been unable to centralize their programs in a single, permanent location, and it has not been able to carry out its religious mission. Specifically, the Chabad has never had enough space to provide a preschool to its community, and it has had only limited space for its Hebrew School, such that the Chabad has not been able to teach several of the religious classes it intends to teach in the modified 85 West Street property. More significantly, the space that the Chabad was renting in 2007 for worship and religious education became unavailable in 2015. Since that time, the Chabad has not had any classroom space. In order to have a Hebrew School, and the other educational programming the Chabad has had and plans to have in this facility, multiple classrooms are needed. Further, it is traditional for a Chabad House to have multiple classrooms.

         3. The First Floor

         Above the basement, on the first floor, the Boe plans contain a shul, or sanctuary, with seating for one-hundred and four congregants. The sanctuary can be converted to a meeting hall. In addition, on the first floor the Boe plans call for a large kosher kitchen; a reception area; a rabbi's study; a coffee bar; restrooms; and closet space.

         The size and layout of the Boe plans as a whole are, in large part, driven by the size and layout of the first floor. The size and layout of the first floor of the Boe plans, in turn, are largely driven by the shul and kosher kitchen.

         The Chabad proposed a shul that could seat one-hundred and four congregants because, for the three years leading up to the submission of its application to the Commission, the Chabad was attracting approximately one hundred attendees to its High Holiday services. In addition, between ten and fifty congregants attend its regular weekend services. The shul was therefore designed to seat one-hundred and four congregants in order to accommodate High Holiday attendance, and also to allow for some congregation growth. In addition to the seating for religious services, the shul was designed to contain shelves for prayer shawls and torahs, a partition to separate men and women during services, and memorial walls, as well as the cantor's pulpit and the rabbi's pulpit. The Chabad also intends to use the shul area as a meeting hall for religious meals, after services and on High Holidays.

         The layout of the proposed addition is influenced by the fact that, in Orthodox Jewish temples, the shul must face east, toward Jerusalem.

         After the shul, the next largest facility on the first floor is the kosher kitchen. Food is important to the Jewish religion. As Rabbi Eisenbach testified, “every Jewish holiday is, they try to kill us, we survive, let's eat. So eating is a very big part of our Chabad services.” Tr. 2 at 162.

         The religious practices of the Chabad demand a relatively large kitchen. This is primarily due to the fact that kosher food preparation, which is dictated by Jewish law, requires a special kitchen arrangement, including separate facilities for dairy products and meat products.

         The Chabad intends to use the kitchen as a model to educate congregants who are interested in keeping kosher at home, but lack the knowledge and skills to do so. In addition to providing a visible model of kosher food preparation, the Chabad intends to hold classes to teach congregants how to prepare traditional Jewish food. For example, the Chabad intends to use the kosher kitchen to conduct challah baking classes.

         The Chabad located its kosher kitchen on the first floor of the proposed structure so that it could easily be accessed for meals served in the shul, which would double as a meeting hall. This is particularly important for the Chabad because, as followers of Orthodox Jewish law, many members of the Chabad community do not use elevators on the Sabbath. For that reason, if the kitchen were located on the second story or in the basement, members of the Chabad community would be forced to carry food and drink up- and downstairs.

         In addition to the shul and the large kosher kitchen, the first floor also contains a rabbi's study, a reception area, a small coffee bar, [3] a lobby, restrooms, and a coat closet. The reception area must be on the first floor both for security reasons and to serve its purpose. Furthermore, in order for the rabbi to be available to his congregation, it is important to have the rabbi's study on the first floor. The lobby, restrooms, and coat closet are all auxiliary to the shul. While the court makes no finding as to the importance of having the coffee bar and gift shop on the first floor, the small size of the coffee bar renders its impact on the floor plans negligible, as the defendants recognized at trial and at oral argument. Generally, the size of the first floor is driven by the sanctuary and its orientation, and the kosher kitchen.

         4. The Second Floor

         The second floor of the Boe plans is occupied entirely by a residence for Rabbi Eisenbach and his family, including seven bedrooms, a kosher kitchen, and a living area.

         Rabbi Eisenbach intends to live in the proposed Chabad House with his wife and twelve children, the oldest of whom is currently twenty-one. Chabad Lubavitch does not require rabbis to have their homes inside their Chabad Houses, and in fact most Chabad Houses do not have a rabbi's residence inside.

         When asked about whether the rabbi's residence needed to be inside the Chabad House, Rabbi Klatzkin testified that, “based on the principle that the rabbi should respond to the best of his ability to the needs of the community, ” he could not say that being located within the Chabad House was a mere convenience. Tr. 1 at 55. In addition, Rabbi Klatzkin testified to his personal experience with a Chabad House at Boston University where the rabbi's residence was inside the Chabad House, which was “crucial” in that university context. When pressed on whether being located within the Chabad House was a necessity, as opposed to a convenience, Rabbi Klatzkin gave the following answer:

It is -- if you mean by that, is it the majority of Chabad rabbis live in the synagogue, then that would not be the case. But if it's -- in certain cases have rabbis found that to be crucial in their own mind, to their mission, to their job, I would say those rabbis who do have it there would speak, I'm supposing, but you are asking my opinion on it, they would speak the way that I am and emphasizing how valuable that was to them.

Tr. 1 at 57. In keeping with this description of the varying needs of Chabad communities, Rabbi Klatzkin testified that, in most of the Chabad Houses that he was familiar with that were located in tourist or college communities, the rabbi's residence was inside the Chabad House.

         Rabbi Eisenbach testified that having his family located inside the Chabad House was necessary for the religious exercise of the Chabad because it made him accessible to his parishioners “24/7, ” which he described as especially important in a tourist community like Litchfield:[4]

As myself being the emissary of the Rebbe to Litchfield, I understand so much the importance of being right by the Chabad to enable us to have a community . . . . [I]t is so challenging to see -- to be able to connect the community in such an unaffiliated and secular community without us being right in the midst.

Tr. 3 at 37.

         Rabbi Eisenbach also testified that it was important for his home to be within the Chabad House in order to serve as a visible model for the community. As described more fully in Section III(A), according to Chabad Lubavitch tradition, “every house is a Chabad House, ” meaning that every home should be a site of religious practice. Rabbi Eisenbach also testified that it would make it easier to share Shabbat dinner with members of the Chabad community, and that it would make it much easier for him and his family to be present on the Sabbath, when Orthodox Jewish law prohibits driving cars. “[T]his is what Chabad is, ” Rabbi Eisenbach testified, “to be able to be right there for the people all the time and be able to say, come join us as a family.” Tr. 2 at 161.

         However, Rabbi Eisenbach and his family have been spending the night four nights a week during the school year in Waterbury, Connecticut, because Rabbi Eisenbach's younger children attend Hebrew school in Waterbury. The Eisenbachs intend to continue to stay in Waterbury half the week, even if the Chabad's proposal for 85 West Street is approved. Tr. 3 at 33. Therefore, regardless of the outcome of this proceeding, Rabbi Eisenbach does not intend to live full-time at the 85 West Street property.

         5. The Attic

         Finally, the partial attic contains a staff residence, with a kitchenette, living room, and two bedroooms. The staff housing is primarily intended for use by students working for the Gan Israel summer camp. This staff always stays in the home of a Chabad Rabbi and their family. Thus, the location of the staff housing is tied to the location of the rabbi's residence, at least to the extent that it is used by young camp counselors from Israel.

         D. The Chabad's Application for a Certificate ...

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