A lawsuit filed by a Litchfield Jewish organization has been reinstated, giving the group new hopes it will ultimately win approval to build a 20,000-square-foot synagogue and community center near the historic green.

Chabad Lubavitch filed its lawsuit against the Litchfield Historic District Commission in 2007, after the commission had rejected plans for the synagogue. Chabad and its lawyers met with a setback this past February, when U.S. District Judge Janet Hall granted a motion for summary judgment and dismissed the lawsuit. Hall found there was no evidence of religious discrimination in the zoning application process.

Lawyers for Chabad, including Kenneth Slater of Halloran & Sage in Hartford, appealed the ruling to the U.S. Court of Appeals for the Second Circuit, claiming the organization should have a right to proceed under provisions of the Religious Land Use and Institutionalized Persons Act. RLUIPA states that land use regulations may not impose a "substantial burden" on free exercise of religion, unless there is a compelling government interest to do so.

In a lengthy decision, a three-judge panel of the appeals court ruled on Sept. 23 that Hall was wrong to dismiss the lawsuit and remanded the case back to her for further consideration. The Second Circuit stated that Hall had erred when she held that Chabad needed to show evidence of discrimination, and also when she said Chabad failed to identify a religious group that received more favorable treatment in Litchfield after filing an application that was "identical in all relevant aspects" to Chabad's proposal.

"We conclude that the [Historic District Commission's] review of the Chabad's application was ... subject to RLUIPA's 'substantial burden' provision, and that the Chabad need not cite an 'identical' comparator to establish a claim under RLUIPA's nondiscrimination provision," the panel wrote.

The appeals court panel did uphold some of Hall's other rulings in the case, including her dismissals of Chabad Lubavitch's claims that its constitutional rights to freedom of religion and equal protection were violated.

Supreme Court Review?

Slater called the decision "extremely important" in that it reversed the district court ruling "that a religious organization can never succeed on a claim that an agency imposed a substantial burden on a religious institution without showing there was discrimination to a religious use."

As a result, the Second Circuit decision could benefit other religious institutions in future litigation, he said.

Slater said the court "wisely determined" that RLUIPA's substantial burden provision provides a remedy for religious institutions when a zoning board or other agency "could otherwise hide behind the fact that broad discretionary regulations may be applicable to other land uses to shield veiled discrimination of a religious land use."

"With this ruling," he said. "We are confident we can succeed on in this case."

However, C. Scott Schwefel, a lawyer for the Historic District Commission, said the case is far from over. He said the lawsuit will now return to U.S. District Court and, an appeal to the U.S. Supreme Court is possible. "We're confident that the district court will determine that there is still no genuine issue of material facts and will again dismiss the action," he said.

Chabad Lubavitch is a Hasidic movement within orthodox Judaism. The group has been active in Litchfield since 1996, and provides social service, educational and programs in the arts. According to court documents, the Historic District Commission ruled Chabad Lubavitch's proposed 17,000-square-foot addition to an 1870s Victorian house, which would be used as a synagogue and a residence for its rabbi, was too large and out of character for the Litchfield historic district, which features many homes from the late 18th and early 19th centuries.

But Rabbi Joseph Eisenbach of Chabad Lubavitch disputed the commission's use of the 17,000-square-foot figure, saying it included the basement and attic. He said the footprint of the two-story house and addition would be less than 4,000 square feet and the total area of the project should be listed as less than 8,000 square feet.

Last year, the Historic District Commission and the town zoning board approved Chabad Lubavitch's plans to use the same 19th-century building near the Litchfield Green for its religious and community activities, as long as Chabad did not expand the building.

*This article is reprinted with the permission of The Connecticut Law Tribune.