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

United States District Court, D. Connecticut

May 23, 2018



          Janet C. Hall United States District Judge.


         This action arose out of a denial of an application for a Certificate of Appropriateness made by Chabad Lubavitch of Litchfield County (“the Chabad”) to the Historic District Commission of the Borough of Litchfield (the “Commission”). The Chabad alleged that the Commission's denial substantially burdened its religious exercise, in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), title 42 section 2000cc et seq. of the United States Code. The defendants, the Commission and the Borough of Litchfield, denied this allegation.

         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, Connecticut General Statutes section 52-571b.

         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 of Litchfield Cty., Inc. v. Litchfield Historic Dist. Com'n, 768 F.3d 183 (2d Cir. 2014).

         The Second Circuit dismissed all claims against one of the Commission members, Wendy Kuhne. See id. at 187 n.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.

         The case was tried to the court over a three day period. 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.

         In a Bench Ruling issued on November 2, 2017, the court found that the Chabad's religious exercise was substantially burdened by the Commission's denial of its application for a certificate of appropriateness, specifically because the first floor footprint that the denial would have permitted was not large enough to accommodate the Chabad's religious needs. See Bench Ruling (Doc. No. 325) at 46-47. The court granted the Chabad's prayer for relief in part. Id. at 70-71. Specifically, the court issued a mandatory injunction as follows:

[T]he court issues a mandatory injunction ORDERING the Historic District Commission of the Borough of Litchfield (the “Commission”) to approve forthwith an application of the Chabad Lubavitch of Litchfield County (the “Chabad”) for a certificate of appropriateness based on the court's conclusion that the denial substantially burdened the Chabad's religious exercise without a compelling governmental interest exercised in the least restrictive means, in violation of the Religious Land Use and Institutionalized Persons Act, title 42, section 2000cc et seq, of the United States Code, within the following parameters:
First, the conditions in the Commission's Decision that do not relate to the size of the addition are still in effect, because those conditions were not challenged by the Chabad. See supra p. 22 & note 7.
Second, given the needs of the Chabad with respect to the proposed religious uses of the first and basement floors of the proposed structure, the Chabad is entitled to a first floor and basement level as proposed in the Boe plans.
Third, because the Chabad's religious exercise will not be substantially burdened if the rabbi's residence is not inside the Chabad House, the application should be modified to remove what is currently the second story of the Boe plans.
The Chabad is hereby ordered to submit an amended application consistent with these conditions, or a modified application if agreed to by the parties without the approval of the court, within thirty days of the date of this Ruling. Upon receipt of said application, the Commission is ordered to approve said application within thirty days.

Id. In a footnote to the mandatory injunction section, the court stated:

The court notes that, because the sub-basement is located entirely below-grade and is therefore beyond the purview of the Commission, the court knows of no reason why the Commission would have the authority, much less the reason, to deny the Chabad the ability to construct the sub-basement level as proposed. In addition, given that removal of the rabbi's residence level from the application will significantly decrease the mass and roofline of the addition, the court is of the view that the staff residential level, either as proposed or with modifications to incorporate / connect it to the second story of the original Deming House, will not conflict with the Commission's stated goals of protecting the residential character of the area and not overwhelming the original structure.

Id. at 71 n.21. In sum, the court agreed with the Chabad's position that its religious exercise was substantially burdened, but disagreed with the Chabad's position as to the extent of the burden.

         On November 16, 2017, the Chabad moved for the award of attorney fees and costs. See generally Plaintiff's Motion for Attorney Fees and Costs (“Pl.'s Mot.”) (Doc. No. 329). The defendants oppose the Chabad's Motion. See Objection re Motion for Attorney Fees (“Def.'s Response”) (Doc. No. 338). Subsequently, on May 16, 2018, the defendants moved for permission to file supplemental exhibits. Specifically, the defendants assert that the Chabad submitted a significantly revised application to the HDC which was approved by the HDC in May 2018. Motion for Permission to File Supplemental Information (“Def.'s Mot. to Supplement”) (Doc. No. 343). The Chabad asserts that the revised application and approval “does not in any manner moot attorneys fees” and should not be considered by this court. Plaintiff's Response to Defendant's Request for Supplemental Briefing (“Pl.'s Obj. to Supplement”) (Doc. No. 344).

         For the reasons set forth below, the Chabad's Motion for Attorney Fees and Costs is granted in the amount of $717, 405.95.


         In their Motion for Attorney Fees and Costs, the Chabad requests a total monetary award for attorney fees and costs in the amount of $1, 640, 110.36, broken down as follows:

Attorney fees for Herbst & Herbst and Robinson & Cole (underlying administrative proceeding)

$214, 095.00

Attorney fees for the American Liberties Institute

$685, 384.00

Attorney fees for Halloran & Sage (local counsel)

$410, 935.50

Attorney fees for Dalton & Tomich, LLC

$223, 419.50


$106, 276.36

         The Chabad makes its Motion pursuant to section 1988 of title 42 of the United States Code, which provides, in pertinent part, as follows:

In any action or proceeding to enforce a provision of . . . the Religious Land Use and Institutionalized Persons Act of 2000 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . .

42 U.S.C. § 1988(b).

         In this case, the defendants assert that the Chabad is not entitled to attorney fees at all because the Chabad is not a “prevailing party” within the meaning of section 1988. See Def.'s Response at 12-17. The defendants further argue that the Chabad is not entitled to reimbursement for expenses such as “airfare, car rentals, fuel, tolls, and meals.” Id. at 17-18. In addition, the defendants raise specific challenges to the Chabad's particular fee claims, including: (1) that the Chabad is not entitled to fees for the proceeding before the Commission that underlies this action, id. at 18-21; (2) that much of the work performed by local counsel and out-of-state counsel was duplicative, id. at 21-23; (3) that the Chabad wasted money by hiring out an out-of-state expert in RLUIPA litigation, Attorney Daniel Dalton, id. at 24-25; and, finally, (4) that the court should cap the number of compensable hours devoted to the fee application to five percent of the number of hours devoted to the main case, id. at 26-27.

         A. Whether the Chabad “Prevailed”

         As the statutory language makes clear, a threshold determination for the court is whether the Chabad is a “prevailing party.” 42 U.S.C. § 1988(b) (“[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . .”) (emphasis added); see LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998) (“The question of whether a plaintiff is a ‘prevailing party' within the meaning of the fee- shifting statutes is a threshold question that is separate from the question of the degree to which the plaintiff prevailed.”). The Supreme Court has held that a plaintiff “prevails” within the meaning of section 1988 “when actual relief on the merits of [its] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Thus, in Rhodes v. Stewart, 488 U.S. 1 (1988), the Supreme Court denied the plaintiff's motion for attorney fees awarded based on a declaratory judgment that prison officials had violated the plaintiffs' First and Fourteenth Amendment rights. “By the time the District Court entered judgment, ‘one of the plaintiffs had died and the other was no longer in custody.'” Farrar, 506 U.S. at 110 (quoting Rhodes, 488 U.S. at 2). “Under ...

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