Tuesday, November 10, 2009
Up Next-SBC's Motions For Reconsideration
The SBC has filed a number of motions for reconsideration. The motions will be posted here shortly.
Monday, November 9, 2009
MEMORANDUM OF LAW IN SUPPORT OF TOWN OF RICHMOND'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S ORDER ON SUMMARY JUDGEMENT-PART III
II. THE TOWN'S IMPOSITION OF CONDITIONS ON ITS APPROVAL OF THE SITE PLAN DOES NOT VIOLATE RLUIPA
In granting SBC's application for the new building, the ZBA imposed a number of conditions-almost all relating to safety issues-based on concerns expressed at the hearings by Town and State officials and by members of the public. Those conditions include improvements to the access road and bridge, installation of a generator, and either a sprinkler system or bolting down the pews. The ZBA has authority under site plan review to impose requirements and conditions that are reasonably related to land use goals and considerations within its purview, including the safe and attractive development of the site. The Court nevertheless ruled that SBC violate RLUIPA by imposing conditions "that cannot be satisfied as laid out".
RLUIPA provides that no governmental entity may implement a land use regulation in a manner that imposes a "substantial burden" on the exercise of religion, unless it demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means in doing so...The burden is on the plaintiff to demonstrates that the Town has substantially burdened its exercise of religion...
To meet its burden, the plaintiff must show that the regulations renders religious exercise "effectively impracticable."... A substantial burden occurs when government places "substantial pressure on an adherent to modify his behavior and to violate his beliefs."....
The record does not support a conclusion that Zoning Regulations 1001.1 makes it effectively impracticable for the plaintiff to engage in the exercise of religion, or that it creates substantial pressure on the SBC's members to violate their beliefs. In fact, the Court states that "{i} does not appear that the Town has totally excluded religious assemblies, institutions or structures from within its jurisdiction, or that it has barred Saint Benedict Center from engaging in religious expression." Nevertheless, the Çourt concludes that the ordinance prevents SBC from expanding its facilities...for the proposition that a prohibition of expansions could create a substantial burden...
The Court notes that "Mintz" applies when expansion is "necessary to {a religious organization's} operations"...The Court cites no evidence showing SBC must expand in order to exercise its religion. In addition, the Court relies on its earlier determination that the Town's criteria for special exception are void as "entirely subjective." If that premise is faulty, as the Town believes and argues above, requiring SBC to comply with the conditions will not itself create a substantial burden....
Those cases stand for the proposition that a municipality may create a substantial burden where it imposes land use restrictions on a religious institution arbitrarily, capriciously, or in bad faith. That proposition may be correct, but it is inapplicable here. There is no evidence that Richmond has acted in the deliberately obstructive manner of the municipalities in those cases...
Richmond did not deny SBC's request for a special exception. It granted the request with conditions that create no more than incidental burdens on the exercise of religion. RLUIPA cannot be construed so broadly as to make any enlargement of a religious facility immune from local land use regulation. SBC cannot show that the conditions substantially burden the exercise of religion, and therefore cannot prevail
A. THE EVIDENCE DOES NOT SUPPORT A CONCLUSION THAT THE CONDITIONS SUBSTANTIALLY BURDEN THE EXERCISWE OF RELIGION.
In ruling on the SBC's motion for summary judgement, the Court was obliged to consider the evidence in the light most favorable to the defendants, giving them the benefits of all reasonable inferences....However, the Court appears to have accepted as true SBC's contentions that the Town would deny the special exception unless SBC obtained "wastewater permits that the stae does not issue" and recorded "documents that the Town would not accept." The Court also appears to accept uncritically SBC's assertion that it cannot continue the exercise of its religion without the construction of a 10,000 square-foot building.
The Court further finds that there is sufficient evidence to indicate SBC cannot satisfy some of the conditions within the required time-frames. However, the Court does not state which conditions those are, or what evidence SBC offered to meet its burden of showing an inability to comply. Instead, the Court faults the Town for failing to demonstrate that SBC can meet the conditions. It is unreasonable to require one party to prove what another party can or cannot do. In any event, SBC's own representatives told the Planning Board that construction would take eight to fourteen months. The shortest time-frame was twelve months.
To excuse regulatory complaiance on a landowners' post-approval assertion that it is unable to comply with the permit conditions in a timely manner would fundamentally undermine the authority of local authorities to enforce their regulations. At the very least, genuine issues of material fact exist as to whether the site plan approval conditions are impossible to satisfy, and whether the Town's imposition of those conditions places substantial pressure on SBC's members to modify their behavior and violate their beliefs. Because the evidence does not provide a sufficient basis for either of these conclusions, the Court should vacate its Order to the extent that it grants summary judgement to SBC on any RLUIPA claim.
CONCLUSION
For the reason set forth above, the Court should reconsider its order of October 23, 2009, and find that : (a) the Town's Zoning Regulations are not an unconstitutional prior restraint on the First Amendment rights; and (b) the conditions imposed on the Town's approval of the plaintiff's site plan application do not violate RLUIPA. The Court should grant summary judgement in favor of the Town of Richmond, the Planning Board, the ZBA, and all named members of thoses Boards as to these claims.
Respectfully submitted,
Town of Richmond ZBA
By its Attorneys
RANSMEIER & SPELLMAN
by Daniel J. Mullen, Esquire
John T. Alexander
November 2, 2009
In granting SBC's application for the new building, the ZBA imposed a number of conditions-almost all relating to safety issues-based on concerns expressed at the hearings by Town and State officials and by members of the public. Those conditions include improvements to the access road and bridge, installation of a generator, and either a sprinkler system or bolting down the pews. The ZBA has authority under site plan review to impose requirements and conditions that are reasonably related to land use goals and considerations within its purview, including the safe and attractive development of the site. The Court nevertheless ruled that SBC violate RLUIPA by imposing conditions "that cannot be satisfied as laid out".
RLUIPA provides that no governmental entity may implement a land use regulation in a manner that imposes a "substantial burden" on the exercise of religion, unless it demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means in doing so...The burden is on the plaintiff to demonstrates that the Town has substantially burdened its exercise of religion...
To meet its burden, the plaintiff must show that the regulations renders religious exercise "effectively impracticable."... A substantial burden occurs when government places "substantial pressure on an adherent to modify his behavior and to violate his beliefs."....
The record does not support a conclusion that Zoning Regulations 1001.1 makes it effectively impracticable for the plaintiff to engage in the exercise of religion, or that it creates substantial pressure on the SBC's members to violate their beliefs. In fact, the Court states that "{i} does not appear that the Town has totally excluded religious assemblies, institutions or structures from within its jurisdiction, or that it has barred Saint Benedict Center from engaging in religious expression." Nevertheless, the Çourt concludes that the ordinance prevents SBC from expanding its facilities...for the proposition that a prohibition of expansions could create a substantial burden...
The Court notes that "Mintz" applies when expansion is "necessary to {a religious organization's} operations"...The Court cites no evidence showing SBC must expand in order to exercise its religion. In addition, the Court relies on its earlier determination that the Town's criteria for special exception are void as "entirely subjective." If that premise is faulty, as the Town believes and argues above, requiring SBC to comply with the conditions will not itself create a substantial burden....
Those cases stand for the proposition that a municipality may create a substantial burden where it imposes land use restrictions on a religious institution arbitrarily, capriciously, or in bad faith. That proposition may be correct, but it is inapplicable here. There is no evidence that Richmond has acted in the deliberately obstructive manner of the municipalities in those cases...
Richmond did not deny SBC's request for a special exception. It granted the request with conditions that create no more than incidental burdens on the exercise of religion. RLUIPA cannot be construed so broadly as to make any enlargement of a religious facility immune from local land use regulation. SBC cannot show that the conditions substantially burden the exercise of religion, and therefore cannot prevail
A. THE EVIDENCE DOES NOT SUPPORT A CONCLUSION THAT THE CONDITIONS SUBSTANTIALLY BURDEN THE EXERCISWE OF RELIGION.
In ruling on the SBC's motion for summary judgement, the Court was obliged to consider the evidence in the light most favorable to the defendants, giving them the benefits of all reasonable inferences....However, the Court appears to have accepted as true SBC's contentions that the Town would deny the special exception unless SBC obtained "wastewater permits that the stae does not issue" and recorded "documents that the Town would not accept." The Court also appears to accept uncritically SBC's assertion that it cannot continue the exercise of its religion without the construction of a 10,000 square-foot building.
The Court further finds that there is sufficient evidence to indicate SBC cannot satisfy some of the conditions within the required time-frames. However, the Court does not state which conditions those are, or what evidence SBC offered to meet its burden of showing an inability to comply. Instead, the Court faults the Town for failing to demonstrate that SBC can meet the conditions. It is unreasonable to require one party to prove what another party can or cannot do. In any event, SBC's own representatives told the Planning Board that construction would take eight to fourteen months. The shortest time-frame was twelve months.
To excuse regulatory complaiance on a landowners' post-approval assertion that it is unable to comply with the permit conditions in a timely manner would fundamentally undermine the authority of local authorities to enforce their regulations. At the very least, genuine issues of material fact exist as to whether the site plan approval conditions are impossible to satisfy, and whether the Town's imposition of those conditions places substantial pressure on SBC's members to modify their behavior and violate their beliefs. Because the evidence does not provide a sufficient basis for either of these conclusions, the Court should vacate its Order to the extent that it grants summary judgement to SBC on any RLUIPA claim.
CONCLUSION
For the reason set forth above, the Court should reconsider its order of October 23, 2009, and find that : (a) the Town's Zoning Regulations are not an unconstitutional prior restraint on the First Amendment rights; and (b) the conditions imposed on the Town's approval of the plaintiff's site plan application do not violate RLUIPA. The Court should grant summary judgement in favor of the Town of Richmond, the Planning Board, the ZBA, and all named members of thoses Boards as to these claims.
Respectfully submitted,
Town of Richmond ZBA
By its Attorneys
RANSMEIER & SPELLMAN
by Daniel J. Mullen, Esquire
John T. Alexander
November 2, 2009
Sunday, November 8, 2009
MEMORANDUM OF LAW IN SUPPORT OF THE TOWN OF RICHMOND'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S ORDER ON SUMMARY JUDGEMENT-PART II
ARGUMENT
The Court misapprehended certain legal and factual issues in its analysis of First Amendment prior restraint law and the Zoning Regulations. The Town has not imposed a substantial burden on SBC's excercise of religion at its property. Its Regulations are content-neutral ordinances intended to promote legitimate governmental interests, and do not confer an impermissible amount of discretion on the Planning Board or ZBA.
I. THE ZONING REGULATIONS DO NOT CONSTITUTE AN UNLAWFUL PRIOR RESTAINT ON FREE SPEECH
The Court ruled that Zoning Regulations 1001 vest the ZBA with excessive discretion in deciding whether to grant a special exception for a house of worship, and therefore constitutes an unconstitutional prior restraint on First Amendment rights. The Court relied largely on a federal district court opinion from Florida, Hollywood Community Synagogue v City of Hollywood. The Court focused on ordinance language stating that the ZBA "may" grant special exceptions in appropriate cases. It concluded that "the board's ultimate determination calls for a determination as to whether the proposed use is 'appropriate' for the area," and that 1001 consequently allows the ZBA unbridled discretion in deciding whether to allow a religious use.
A. THE REGULATIONS DO NOT GIVE THE ZBA UNFETTERED DISCRETION TO DENY A SPECIAL EXCEPTION
The Court misconstrued Regulations 1001. While the section's preamble uses the word "may", the operative portions of the ordinance make the Board's guidelines clear. In acting on an application for a special exception, the ZBA "shall determine that the following criteria are met {...}. Order, page 17, citing Regulations 1001. The "appropriateness" of a requested use is just one of the six criteria listed; it is not the Board's "ultimate" determination. The ordinance further specifies factors the Board must consider to determine appropriateness: topography, soils, water resources, road access, condition of structures, and compatibility with the surrounding land uses.
This is not the sort of unbridled discretion that federal courts have found to confer arbitrary authority on a local board...Impermissible discretion may exist when a regulation contains no standards at all for its application, or when it requires local officials to judge something as vague as "public morals and decency"......
A regulation is not necessarily vague because it does not precisely apprise an applicant of the standards by which an administrative will make a decision...Land use boards must often exercise judgement and discretion in implementing regulations.....The fact that some judgements include a subjective element does not invalidate local regulations....
Site plan review requires just such judgements. The process is designed in part "to assure that sites will be developed in a safe and attractive manner and in a way that will not involve danger or injury to the health, safety, or property of abutting property owners or the general public"..These purposes are accomplished "by subjecting the plan to the very expertise expected of a planning board in cases where it would not be feasible to set forth in the ordiance a set of specific requirements upon which a building inspector could readily grant or refuse a permit."
Courts give weight to an agency's narrowing interpretation of its own regulations, particularly where, as here, the record contains no evidence that the regulations have been unfairly administered...Richmond did not deny SBC a special exception. The Court should not lose sight of the fact that SBC's church and school already exist at the site, and that the Town has taken no action to stop SBC from continuing its present uses. In the Hollywood Community Synagogue, in contrast, the city ordered a religious institution to cease all ongoing activities within one week..It is not difficult to understand that the court in that case found an arbitrary exercise of authority leading to a substantial burden on religious use.
The facts are very different here. It is evident that Richmond has not construed its authority as allowing arbitrary decisions on applications. Its regulations establish content-neutral restrictions properly tailored to serve legitimate municipal goals, and do not violate SBC's First Amendment rights."
Part III in next posting
The Court misapprehended certain legal and factual issues in its analysis of First Amendment prior restraint law and the Zoning Regulations. The Town has not imposed a substantial burden on SBC's excercise of religion at its property. Its Regulations are content-neutral ordinances intended to promote legitimate governmental interests, and do not confer an impermissible amount of discretion on the Planning Board or ZBA.
I. THE ZONING REGULATIONS DO NOT CONSTITUTE AN UNLAWFUL PRIOR RESTAINT ON FREE SPEECH
The Court ruled that Zoning Regulations 1001 vest the ZBA with excessive discretion in deciding whether to grant a special exception for a house of worship, and therefore constitutes an unconstitutional prior restraint on First Amendment rights. The Court relied largely on a federal district court opinion from Florida, Hollywood Community Synagogue v City of Hollywood. The Court focused on ordinance language stating that the ZBA "may" grant special exceptions in appropriate cases. It concluded that "the board's ultimate determination calls for a determination as to whether the proposed use is 'appropriate' for the area," and that 1001 consequently allows the ZBA unbridled discretion in deciding whether to allow a religious use.
A. THE REGULATIONS DO NOT GIVE THE ZBA UNFETTERED DISCRETION TO DENY A SPECIAL EXCEPTION
The Court misconstrued Regulations 1001. While the section's preamble uses the word "may", the operative portions of the ordinance make the Board's guidelines clear. In acting on an application for a special exception, the ZBA "shall determine that the following criteria are met {...}. Order, page 17, citing Regulations 1001. The "appropriateness" of a requested use is just one of the six criteria listed; it is not the Board's "ultimate" determination. The ordinance further specifies factors the Board must consider to determine appropriateness: topography, soils, water resources, road access, condition of structures, and compatibility with the surrounding land uses.
This is not the sort of unbridled discretion that federal courts have found to confer arbitrary authority on a local board...Impermissible discretion may exist when a regulation contains no standards at all for its application, or when it requires local officials to judge something as vague as "public morals and decency"......
A regulation is not necessarily vague because it does not precisely apprise an applicant of the standards by which an administrative will make a decision...Land use boards must often exercise judgement and discretion in implementing regulations.....The fact that some judgements include a subjective element does not invalidate local regulations....
Site plan review requires just such judgements. The process is designed in part "to assure that sites will be developed in a safe and attractive manner and in a way that will not involve danger or injury to the health, safety, or property of abutting property owners or the general public"..These purposes are accomplished "by subjecting the plan to the very expertise expected of a planning board in cases where it would not be feasible to set forth in the ordiance a set of specific requirements upon which a building inspector could readily grant or refuse a permit."
Courts give weight to an agency's narrowing interpretation of its own regulations, particularly where, as here, the record contains no evidence that the regulations have been unfairly administered...Richmond did not deny SBC a special exception. The Court should not lose sight of the fact that SBC's church and school already exist at the site, and that the Town has taken no action to stop SBC from continuing its present uses. In the Hollywood Community Synagogue, in contrast, the city ordered a religious institution to cease all ongoing activities within one week..It is not difficult to understand that the court in that case found an arbitrary exercise of authority leading to a substantial burden on religious use.
The facts are very different here. It is evident that Richmond has not construed its authority as allowing arbitrary decisions on applications. Its regulations establish content-neutral restrictions properly tailored to serve legitimate municipal goals, and do not violate SBC's First Amendment rights."
Part III in next posting
Saturday, November 7, 2009
MEMORANDUM OF LAW IN SUPPORT OF THE TOWN OF RICHMOND'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S ORDER ON SUMMARY JUDGEMENT-PART 1
FACTS
"Saint Benedict Center, Inc. ("SBC") has conducted religious services and operated a religious school in Richmond for approximately twenty years, in buildings originally constructed by a prior landowner*, the Blessed Sacrament Community ("BSC"). The buildings are situated in a residential area, on a narrow gravel road accessible only by a single-lane bridge. In November 1988 the Town approved BSC's site plan application for school improvements, on the condition that BSC install an alternative access road to the property. The road was never built. In May 1989 BSC conveyed the property to SBC. Later that year, the Town's selectmen issued a building permit to SBC for educational and religious uses, without requiring SBC to seek a special exception or variance.
In 2006 SBC submitted a site plan application to the Richmond Planning Board seeking to build a 10,000 square-foot building on its property. Town Zoning Regulations 1001.1 and 1001.3 allow religious instituations in residential zones by special exception, and allow schools by variance. SBC did not apply for either a special exception or a variance.
The Planning Board and the Zoning Board of Adjustment conducted a series of public hearings on the site plan application, in which the Chief of Police, the Fire Chief, and members of the public raised concerns about traffic, wells, septic systems, drainage run-off, electrical power, sprinkler systems, the safety of the existing bridge, and emergency vehicle access. The ZBA ultimately issued a final order approving the application with conditions. SBC appeals that order. It alleges "inter alia" that the Zoning Regulations facially violate the First Amendment of the United Staes Constitution, as well as the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. & 2000cc, et seq. (RLUIPA')
On October 23, 2009 the Court issued an order on cross-motions for summary judgement. The Town seeks reconsideration of the determination that: (1) the Zoning Regulations constitute an unlawful prior restraint on speech; and (2) the Town imposed unlawful conditions on its approval of the site plan application."
to be continued on next post
* Doug Bersaw, aka Brother Anthony Mary , M.I.C.M., was President of Blessed Sacrament Community and served as Prefect of the Saint Benedict Center for many years (see Boston Globe article http://www.boston.com/news/local/articles/2004/02/22/cherishing_an_older_catholicism). In September 2009 Richmond Supervisor's of the Checklist appointed Mr. Bersaw as the Town Moderator, to serve in this position until town elections in March 2010.
"Saint Benedict Center, Inc. ("SBC") has conducted religious services and operated a religious school in Richmond for approximately twenty years, in buildings originally constructed by a prior landowner*, the Blessed Sacrament Community ("BSC"). The buildings are situated in a residential area, on a narrow gravel road accessible only by a single-lane bridge. In November 1988 the Town approved BSC's site plan application for school improvements, on the condition that BSC install an alternative access road to the property. The road was never built. In May 1989 BSC conveyed the property to SBC. Later that year, the Town's selectmen issued a building permit to SBC for educational and religious uses, without requiring SBC to seek a special exception or variance.
In 2006 SBC submitted a site plan application to the Richmond Planning Board seeking to build a 10,000 square-foot building on its property. Town Zoning Regulations 1001.1 and 1001.3 allow religious instituations in residential zones by special exception, and allow schools by variance. SBC did not apply for either a special exception or a variance.
The Planning Board and the Zoning Board of Adjustment conducted a series of public hearings on the site plan application, in which the Chief of Police, the Fire Chief, and members of the public raised concerns about traffic, wells, septic systems, drainage run-off, electrical power, sprinkler systems, the safety of the existing bridge, and emergency vehicle access. The ZBA ultimately issued a final order approving the application with conditions. SBC appeals that order. It alleges "inter alia" that the Zoning Regulations facially violate the First Amendment of the United Staes Constitution, as well as the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. & 2000cc, et seq. (RLUIPA')
On October 23, 2009 the Court issued an order on cross-motions for summary judgement. The Town seeks reconsideration of the determination that: (1) the Zoning Regulations constitute an unlawful prior restraint on speech; and (2) the Town imposed unlawful conditions on its approval of the site plan application."
to be continued on next post
* Doug Bersaw, aka Brother Anthony Mary , M.I.C.M., was President of Blessed Sacrament Community and served as Prefect of the Saint Benedict Center for many years (see Boston Globe article http://www.boston.com/news/local/articles/2004/02/22/cherishing_an_older_catholicism). In September 2009 Richmond Supervisor's of the Checklist appointed Mr. Bersaw as the Town Moderator, to serve in this position until town elections in March 2010.
TOWN OF RICHMOND'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S ORDER ON SUMMARY JUDGEMENT
Thed Town of Richmond asks the Court to reconsider several determinations made in its order on summary judgement issued October 23, 2009, and in support of its motion states as follows:
1. The Court partially granted the plaintiff's motion for summary judgement upon rulings that: (a) the town's regulatory requirement of a special exception to operate a house of worship is an unconstituitional prior restraint on First Amendment rights; and (b) the Town violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc, et. seq. by imposing conditions that "cannot be satisfied as provided" on a site plan approval Order, p.32.
2. The Town respectfully asserts that the Court misapprehended the law and facts in making these determinations.
3. A memorandum of law in support of this motion is attached.*
4. As this is a dispositive motion, concurrence has not been sought from the plaintiff's counsel.
WHEREFORE, the Town of Richmond asks the Court to reconsider these portions of its Order; to rule that : (a) the Town's Zoning Regulations are not an unconstitutional prior restraint on First Amendment rights; (b) the conditions imposed on the Town's approval of the plaintiff's site plan to not violate RLUIPA; and to enter summary judgement in favor of the Town on these issues.
Respectfully submitted,
Town of Richmond Zoning Board of Adjustment
By Its Attorneys
Daniel J. Mullen, Esquire
John T. Alexander
Dated: November 2, 2009
* "Memorandum of Law" will be in the next posting on this blog
1. The Court partially granted the plaintiff's motion for summary judgement upon rulings that: (a) the town's regulatory requirement of a special exception to operate a house of worship is an unconstituitional prior restraint on First Amendment rights; and (b) the Town violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc, et. seq. by imposing conditions that "cannot be satisfied as provided" on a site plan approval Order, p.32.
2. The Town respectfully asserts that the Court misapprehended the law and facts in making these determinations.
3. A memorandum of law in support of this motion is attached.*
4. As this is a dispositive motion, concurrence has not been sought from the plaintiff's counsel.
WHEREFORE, the Town of Richmond asks the Court to reconsider these portions of its Order; to rule that : (a) the Town's Zoning Regulations are not an unconstitutional prior restraint on First Amendment rights; (b) the conditions imposed on the Town's approval of the plaintiff's site plan to not violate RLUIPA; and to enter summary judgement in favor of the Town on these issues.
Respectfully submitted,
Town of Richmond Zoning Board of Adjustment
By Its Attorneys
Daniel J. Mullen, Esquire
John T. Alexander
Dated: November 2, 2009
* "Memorandum of Law" will be in the next posting on this blog
Thursday, November 5, 2009
Is there a Lawyer Out There?
Can someone give a simple explanation as to what all these motions mean and how it effects the original suit of the Saint Benedict Center v the Town of Richmond and the Richmond 12? You can make a comment to this posting.
ST.BENEDICT CENTER'S THIRD MOTION TO COMPEL
"The Town responds that it has provided certain of the requested information and will be providing further information or a privilege log. The Town submits that the providing of such information and log would moot the motion. Matter is DEFFERED until St. Benedict Center requests a ruling on the motion after further materials have been provided."
Philip P. Mangones, Presiding Justice, Cheshire Superior Court
10-23-2009
Philip P. Mangones, Presiding Justice, Cheshire Superior Court
10-23-2009
Tuesday, November 3, 2009
SAINT BENEDICT CENTER'S MOTION TO STRIKE BOCCALINI'S OBJECTION TO SAINT BENEDICT CENTER'S MOTION FOR SUMMARY JUDGEMENT
The Court is not persuaded that Boccalini is barred from objecting to Saint Benedict Center's motion simply because it had never been granted intervenor status in Saint Benedict Center's action against the Town regarding constitutional and RLUIPA violations. Boccalini had been granted intervenor status in the cases involving state law appeals. These cases were consolidated with the cases involving the constitutional issues. The constitutional and RLUIPA issues were sufficiently connected with the state law appeals to warrant consolidation, and, thus, that it would follow that these issues could impact Boccalini's rights as intervenor in the state law appeals. Further, a motion to intervene in the constitutional/RLUIPA actions after consolidation, likely would have been denied as moot....
Accordingly, the Motion to Strike Boccalini's Objection to Saint Benedict Center's Motion for Summary Judgement on Constitutional and RLUIPA issues is DENIED.
Philip P Mangones, Presiding Justice, Cheshire Superior Court
10-23-09
Accordingly, the Motion to Strike Boccalini's Objection to Saint Benedict Center's Motion for Summary Judgement on Constitutional and RLUIPA issues is DENIED.
Philip P Mangones, Presiding Justice, Cheshire Superior Court
10-23-09
Friday, October 30, 2009
SAINT BENEDICT CENTER'S MOTION FOR SUMMARY JUDGEMENT (CONSTITUTIONAL AND RLUIPA CLAIMS)
Saint Benedict Center seeks summary judgement on its constitutional and RLUIPA claims. The Court has identified four claims.
First, Saint Benedict Center contends that Richmond had violated the First Amendment to the United States Constitution by requiring a special exception for Saint Benedict Center's house of worship, because the requirement had not been based on objective, naroow and definitive standards.
Second, Saint Benedict Center maintains that Richmond violated the Equal Protection and Due Process clauses of the Fourteenth Amendment by imposing conditions not imposed on similarly situated public assemblies and/or by enforcing land use regulations/ordinances that are arbitrary and capricious.
Third, Saint Benedict Center claims Richmond violated the First Amendment, Equal Protection and RLUIPA by requiring Saint Benedict Center's house of worship to obtain a special exception to be located anywhere in the Town.
Finally, Saint Benedict Center maintains Richmond had violated RLUIPA by imposing land use regulations that substantially burdened Saint Benedict Center's religious land use by making expansion impracticable. The Town of Richmond has objected and filed its own cross-motion for summary judgement. Boccalini and other Town residents have also objected. The Court addresses each issue in turn.
Issues of First Amendment: Prior Restraint
According to the Town of Richmond's zoning ordinance, houses of worship are not directly allowed uses in any of the Town's four zoning districts. Houses of worship are, however, permitted by special exception in the residential district. A special exception may be granted if "the proposed site is an appropriate location for the proposed use". In order to determine whether a proposed use is appropriate, the ZBA must consider:
1. whether the proposed use is compatible with surroundng land uses
2. the nature of the "topography, soils, water resources, road access and locations of driveways, condition of
existing structures
3. whether the proposed use will create problems like "excessive noise, traffic, dust, glare, odors
4. whether the traffic generated by the proposed use will present a hazard to the neighborhood
Saint Benedict Center contends that the special exception requirement at bar constitutes a prior restraint on its members' First Amendment rights, including the right to religious speech, assembly and practice. Moreover, Saint Benedict Center maintains that the standards for granting a special exception are subjective, and, therefore, the special exception requirement would effectively constitute an unconstitutional prior restriant. Richmond has not argued that the ordiance or special exception standards do not constitute a prior restaint. Instead, Richmond contends that the standards are not vague or arbitrary. and the ZBA's discretion is sufficiently circumscribed by the standards for consideration of a special exception.
A zoning ordinance that subjects the exercise of the First Amendment freedoms to a prior restraint without sufficiently narrow objective and definite standards to guide a licensing authority is deemed unconstitutional. Shuttlesworth v City of Birmingham, 394 U.S.147, 151 (1969)
A "prior restraint" is a restriction on expression imposed before the expression occurs. Hollywood Community Synagogue, Inc v City of Hollywood. Saint Benedict Center argues that cases dealing with regulations that restrain free speech are equally applicable to land use ordinances and regulations in religious exercise cases.
In this case, the parties do not disagree that the zoning ordinance does require that a special exception to be sought before a house of worship may be located in Richmond's residential zone. No zoning district makes direct allowance for houses of worship. Absent the granting of a special exception, no house of worship could be established within the town.
The Town of Richmond land use ordiances concerning houses of worship involve similar (as in the Hollywood case) matters. They provide in relevant part that "the Richmond Board of Adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of this Ordiance to permit...uses for houses of worship in the residential district. All exceptions shall be made in harmony with the general purpose and intent of this ordiance and size, frontage, setbacks and other requirements, as stated in this ordiance for residential dwellings, shall apply as a minimum for special exceptions"
While the ZBA is instructed to consider environmental factors, surrounding uses and conditions, the board's ultimate determination calls for a determination as a whether the proposed is "appropriate: for the area. "Some measure of discretion is acceptable, but the cases show that virtually any amount of discretion beyond the merely ministerial is suspect. Standards must be precise and objective" {Lady J. Lingerie, Inc. v City of Jacksonville}
In as much as the text of the standards appears to be undisputed, and because there is little indication that more objective standards are in place, the Court is persuaded that the Saint Benedict Center is entitled to summary judgement on its claim that the requirement to obtain a special exception for a house of worship, as presently enacted in the Town of Richmond, constitutes a prior restraint that violates the First Amendment. The standards for granting said exception invest excessive discretion in the hands of the land use board. Accordingly, Saint Benedict Center's Motion for Summary Judgement is GRANTED and the Town's cross-motion is DENIED.
Issues of Equal Protection/Due Process-Issues of Different Treatment
Saint Benedict Center next contends that the Town imposed different conditions on its site plan than those imposed on other public assembly spaces that are similarily situated, and becasue there was no rational basis for doing so, the Town violated Saint Benedict Center's right to equal protection and due process. Specifically, Saint Benedict Center maintains that the Town has approved public assembly spaces including the YMCA and Veterans' Hall without imposing restrictive conditions like the ones the Planning Board imposed on the Saint Benedict Center's site plan. Additionally, Saint Benedict Center contends there is no rational basis for the Town ordinance requirement that a school be located in the Lakeside District, and, thus, Saint Benedict Center's Due Process rights have been violated.
The government is not permitted to treat religious groups differently than other groups or organization without a rational basis for the disparate treatment. Moreover,even if the Town had treated Saint Benedict Center differently but it had not been motivated by discriminatory animus, the Town still would have violated Saint Benedict Center's constitutional rights if the disparate treatment were arbitray.
The Court is persuaded that there are genuine issues of fact as to whether the YMCA and Veterans' Hall public assembly facilities are similarly situated in terms of lacation and nature of use. Saint Benedict Center presented the Affidavit of Eleonore Villarubia*, an individual familiar with the plans of Saint Benedict Center's proposed building as well as the YMCA public assembly space and Veterans'Hall. She states (1) both Saint Benedict Center's proposed building and the YMCA assembly area will have a significant number of children, (2) the YMCA building is utilized even when the summer camp is not is session, (3) the YMCA space does not have a sprinkler system or seats bolted to the floor, (4) access to the YMCA is via a private dirt road; (5) Veteran' Hall can accomodate over 200 people and does not have seats bolted to the floor or a sprinkler system; (6) the YMCA is an 8,000 square-foot assembly space and Saint Benedict Center's purposed space is 10,000 square-feet; and (7) the YMCA also had a house of worship.
The evidence in the record indicates that Saint Benedict Center operates daily and the access to Saint Benedict Center's land is on Fay Martin Road, a gravel road in a residential area, the integrity of which has been questioned during public hearings. The present state of evidence leaves various questions: first, it is not clear how often the other public assembly spaces are utilized, Moreover, it is unclear whether the road conditions and access for all of the assemblies is similar. Because there is a genuine issue of fact as to whether the YMCA and Veterans' Hall are similarly situated, both parties' motion for summary judgement are DENIED with regard to Saint Benedict Center's Equal Protection claim.
Saint Benedict Center asserts there is no rational basis for requiring a school obtain a variance if it is not located in the Lakeside district. As with the issue of summary judgement concerning equal protection and places of assembly, the Court would conclude that there are factual issues in disagreement that would call for DENIAL of summary judgement.
Issues of Violation of First Amendment and RLUIPA by Limiting Houses of Worship
Next, Saint Benedict Center contents that the Town violated RLUIPA by (1) unreasonably requiring a special exception before any house of worship may be built in the Town, and (2) by requiring Saint Benedict Center to obtain a special exception for its existing house of worship and a variance for its existing school, despite the fact that permits had been granted and such uses had been approved in the late 1980's.
The First Amendment prohits Congress from enacting any laws prohibiting the free exercise of religion. This clause applies to the state and local governments through the Fourteenth Amendment. Further, a municipality may not "entirely exclude a type of conduct that the First Amendment protects." RLUIPA provides that "{n}o government shall impose or implement a land use regulation that...totally excludes religious assemblies from a jurisdiction; or..unreasonably limits religious assemblies, institutions, or structures within a jurisdiction."
Thus, the first question is whether Richmond's regulations prohibit Saint Benedict Center from exercising its religion within the Town, such that the regulations violate the First Amendment. The second question is whether the regulations totally exclude religious assemblies from Richmond or whether they unreasonably limit such assemblies, institutions or structures, such that they violate RLUIPA.
Here, the Court is not persuaded that Richmond has effectively excludued houses of worship or religious assemblies from the Town. First, it is unclear whether the Town's actions have caused Saint Benedict Center's current religious use to be illegal in their current use. It appears that the parties disagree as to the effect of the board's ruling-Saint Benedict Center maintains that its current use would not have been permitted if it had failed to appeal the ZBA's determination, but the Town maintains that Saint Benedict Center's current use would have remained unaffected by the board's rulings.
It does not appear that the Town has totally excluded religious assemblies, institutions or structures from within its jurisdiction, or that it has barred Saint Benedict Center from engaging in religious expression. However, the ordiance scheme does limit where houses of worship and schools may be located. As applied in this case, the ordinance also apparently limits a religious organization from expanding its existing facilities.
In Vision, 468 F.3d at 990, the court concluded that requiring the religious organization to obtain a special use permit did not reasonably limit religious assemblies, institutions or structures because the Town official's authority was circumscribed by various factors it had to consider. However, the land use authority in that case had denied Vision's permit because it did not meet the strict size requirements set forth in the ordiance. The court there did not have occasion to consider whether the permit requirement was unreasonable if the standards for granting the permit left the decision up to the discretion of the board. In this case, while there is an avenue for obtaining special exceptions for houses of worship, it appears the standards for obtaining such an exception are entirely subjective, as discussed above. At the same time, however, Saint Benedict Center has not attempted to apply for a special exception, and the evidence also indicates that no other house of worship in the Town has attempted to apply for a special exception. Thus, at this point, it is not clear how easy or difficult it is to obtain a special exception.
The Court is persuaded that there remain issues of fact as to whether the requirement to obtain a special exception was a reasonable limitation on religious assemblies, institutions or structures. As far as whether the Town violated RLUIPA and the First Amendment by requiring Saint Benedict Center to obtain a special exception and variance for its current facility, it is unclear to the Court whether the Town in fact imposed such a requirement. Accordingly, both parties' motions for summary judgement are DENIED.
Issues of Violation of RLUIPA by Substantial Burden
Under the provisions of RLUIPA, "{n}o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious excercise of a person, including a religious assembly or institution, unless the government demonstartes that the imposition on that person, assebly, or institution...is in furtherance of a compelling governmental interest. Congress determined that the statute would apply in situations where the substantial burden (1) is "imposed on a program or activity that receives Federal financial assistance"; (2) "affects, or removal of the substantial burden would effect, commerce with foreign nations, among the several States, or with Indian tribes", or (3) "is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved."
Saint Benedict Center submits and the Court concurs, that the statute applies because the board's decisions can impact interstate commerce within the meaning of the statute...Thus the only remaining question is whether the Town had imposed a substantial burden on Saint Benedict Center's land use.
Saint Benedict Center maintains that although "substantial burden" has not been identified by the statute, and the federal circuit courts have not yet agreed upon a universal definition, it can show substantial burden under the most difficult test...Here, Saint Benedict Center contends the actions of the ZBA made Saint Benedict Center's practice of religion effectively impracticable. Because it contends the ZBA determined that a house of worship was not permitted without a special exception, then the ZBA had determined that Saint Benedict Center's current house of worship was illegal and thus could have shut down the facility if Saint Benedict Center had not brought an appeal. Moreover, Saint Benedict Center contended there was no guarantee that it would be granted a special exception if it had applied. Further, because the standards for granting a special exception are not precise or based on objective criteria, Saint Benedict Center contends that requiring Saint Benedict Center to obtain such an exception will impose a substantial burden.....
Further, Saint Benedict Center contends the actions of the Planning Board made construction of the new church/school effectively impracticable because the conditions are onerous, unreasonable and contray to law. Without the new facility, Saint Benedict Center maintains that it connot engage in the proper excercise of its religion. Moreover, because RLUIPA defines religious practice to include the construction of religious facilities...Saint Benedict Center argues that because the conditions place a substantial burden on its ability to construct its proposed house of worship and religious school, the the actions of the boards place a substantial burden on Saint Benedict Center's practice of religion.
The Town of Richmond responds that there is no substantial burden imposed because since the board's decisions, Saint Benedict Center has continued to operate its monastery, school, and house of worship. Further, Richmond maintains that the conditions are neutral and related to health and safety, and thus do not place a substantial burden on Saint Benedict Center's religious practice.
The question, therefore, is whether the actions of the Town have made the practice of religion effectively impracticable-whether that be Saint Benedict Center members' ability to worship/participate in religious proceedings or their ability to construct the new facility. First, it is not entirely clear to the Court whether the Town had determined that Saint Benedict Center's present use is unlawful and could not continue without special exception or variance. In the Town's Memorandum in Support of its Motion for Summary Judgement, the Town indicates that the board's actions are not limiting Saint Benedict Center's religious use. Also, the Court cannot find evidence in the certified record indicating that the Board's actions were intended to apply to Saint Benedict Center's existing uses. Because of this apparent factual dispute, the Court is not inclined to grant summary judgement in either party's favor.
Moreover, even if the Town's decisions had not impacted Saint Benedict Center's right to operate its current facility as-is, and had permitted Saint Benedict Center to hold religious assemblies and operate a religious school for over 20 years, this is not necessarily dispositive of the substantial burden.
The next question is whether the conditions imposed, or the requirement to obtain a special exception and variances impedes Saint Benedict Center's ability to construct their proposed facility. There is evidence to indicate that some of the conditions cannot be reasonably be satisfied within the required time frame, and the notice of decision indicates that if the conditions are not met, approval will be revoked. Regardless of whether the conditions somehow relate to health, safety or act to ensure the proposal fits into the Town's master plan, and regardless of whether they are neutral, RLUIPA's substantial burden test applies. There is sufficient evidence to indicate that some of the conditions cannot be satisfied as set forth in the approval. The Town has not presented evidence to indicate that all of the conditions can be satisfied within the time frame provided.
Accordingly, Saint Benedict Center's motion for summary judgement on the RLUIPA claim is granted to the extent Saint Benedict Center asserts that the Town has violated RLUIPA by imposing conditions on the site plan application that cannot be satisfied as laid out. To the extent Saint Benedict Center argues that thew Town had otherwise violate RLUIPA, the motion is DENIED. The Town's motion for summary judgement is DENIED.
Philip P. Mangones, Presiding Judge
10-23-09
First, Saint Benedict Center contends that Richmond had violated the First Amendment to the United States Constitution by requiring a special exception for Saint Benedict Center's house of worship, because the requirement had not been based on objective, naroow and definitive standards.
Second, Saint Benedict Center maintains that Richmond violated the Equal Protection and Due Process clauses of the Fourteenth Amendment by imposing conditions not imposed on similarly situated public assemblies and/or by enforcing land use regulations/ordinances that are arbitrary and capricious.
Third, Saint Benedict Center claims Richmond violated the First Amendment, Equal Protection and RLUIPA by requiring Saint Benedict Center's house of worship to obtain a special exception to be located anywhere in the Town.
Finally, Saint Benedict Center maintains Richmond had violated RLUIPA by imposing land use regulations that substantially burdened Saint Benedict Center's religious land use by making expansion impracticable. The Town of Richmond has objected and filed its own cross-motion for summary judgement. Boccalini and other Town residents have also objected. The Court addresses each issue in turn.
Issues of First Amendment: Prior Restraint
According to the Town of Richmond's zoning ordinance, houses of worship are not directly allowed uses in any of the Town's four zoning districts. Houses of worship are, however, permitted by special exception in the residential district. A special exception may be granted if "the proposed site is an appropriate location for the proposed use". In order to determine whether a proposed use is appropriate, the ZBA must consider:
1. whether the proposed use is compatible with surroundng land uses
2. the nature of the "topography, soils, water resources, road access and locations of driveways, condition of
existing structures
3. whether the proposed use will create problems like "excessive noise, traffic, dust, glare, odors
4. whether the traffic generated by the proposed use will present a hazard to the neighborhood
Saint Benedict Center contends that the special exception requirement at bar constitutes a prior restraint on its members' First Amendment rights, including the right to religious speech, assembly and practice. Moreover, Saint Benedict Center maintains that the standards for granting a special exception are subjective, and, therefore, the special exception requirement would effectively constitute an unconstitutional prior restriant. Richmond has not argued that the ordiance or special exception standards do not constitute a prior restaint. Instead, Richmond contends that the standards are not vague or arbitrary. and the ZBA's discretion is sufficiently circumscribed by the standards for consideration of a special exception.
A zoning ordinance that subjects the exercise of the First Amendment freedoms to a prior restraint without sufficiently narrow objective and definite standards to guide a licensing authority is deemed unconstitutional. Shuttlesworth v City of Birmingham, 394 U.S.147, 151 (1969)
A "prior restraint" is a restriction on expression imposed before the expression occurs. Hollywood Community Synagogue, Inc v City of Hollywood. Saint Benedict Center argues that cases dealing with regulations that restrain free speech are equally applicable to land use ordinances and regulations in religious exercise cases.
In this case, the parties do not disagree that the zoning ordinance does require that a special exception to be sought before a house of worship may be located in Richmond's residential zone. No zoning district makes direct allowance for houses of worship. Absent the granting of a special exception, no house of worship could be established within the town.
The Town of Richmond land use ordiances concerning houses of worship involve similar (as in the Hollywood case) matters. They provide in relevant part that "the Richmond Board of Adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of this Ordiance to permit...uses for houses of worship in the residential district. All exceptions shall be made in harmony with the general purpose and intent of this ordiance and size, frontage, setbacks and other requirements, as stated in this ordiance for residential dwellings, shall apply as a minimum for special exceptions"
While the ZBA is instructed to consider environmental factors, surrounding uses and conditions, the board's ultimate determination calls for a determination as a whether the proposed is "appropriate: for the area. "Some measure of discretion is acceptable, but the cases show that virtually any amount of discretion beyond the merely ministerial is suspect. Standards must be precise and objective" {Lady J. Lingerie, Inc. v City of Jacksonville}
In as much as the text of the standards appears to be undisputed, and because there is little indication that more objective standards are in place, the Court is persuaded that the Saint Benedict Center is entitled to summary judgement on its claim that the requirement to obtain a special exception for a house of worship, as presently enacted in the Town of Richmond, constitutes a prior restraint that violates the First Amendment. The standards for granting said exception invest excessive discretion in the hands of the land use board. Accordingly, Saint Benedict Center's Motion for Summary Judgement is GRANTED and the Town's cross-motion is DENIED.
Issues of Equal Protection/Due Process-Issues of Different Treatment
Saint Benedict Center next contends that the Town imposed different conditions on its site plan than those imposed on other public assembly spaces that are similarily situated, and becasue there was no rational basis for doing so, the Town violated Saint Benedict Center's right to equal protection and due process. Specifically, Saint Benedict Center maintains that the Town has approved public assembly spaces including the YMCA and Veterans' Hall without imposing restrictive conditions like the ones the Planning Board imposed on the Saint Benedict Center's site plan. Additionally, Saint Benedict Center contends there is no rational basis for the Town ordinance requirement that a school be located in the Lakeside District, and, thus, Saint Benedict Center's Due Process rights have been violated.
The government is not permitted to treat religious groups differently than other groups or organization without a rational basis for the disparate treatment. Moreover,even if the Town had treated Saint Benedict Center differently but it had not been motivated by discriminatory animus, the Town still would have violated Saint Benedict Center's constitutional rights if the disparate treatment were arbitray.
The Court is persuaded that there are genuine issues of fact as to whether the YMCA and Veterans' Hall public assembly facilities are similarly situated in terms of lacation and nature of use. Saint Benedict Center presented the Affidavit of Eleonore Villarubia*, an individual familiar with the plans of Saint Benedict Center's proposed building as well as the YMCA public assembly space and Veterans'Hall. She states (1) both Saint Benedict Center's proposed building and the YMCA assembly area will have a significant number of children, (2) the YMCA building is utilized even when the summer camp is not is session, (3) the YMCA space does not have a sprinkler system or seats bolted to the floor, (4) access to the YMCA is via a private dirt road; (5) Veteran' Hall can accomodate over 200 people and does not have seats bolted to the floor or a sprinkler system; (6) the YMCA is an 8,000 square-foot assembly space and Saint Benedict Center's purposed space is 10,000 square-feet; and (7) the YMCA also had a house of worship.
The evidence in the record indicates that Saint Benedict Center operates daily and the access to Saint Benedict Center's land is on Fay Martin Road, a gravel road in a residential area, the integrity of which has been questioned during public hearings. The present state of evidence leaves various questions: first, it is not clear how often the other public assembly spaces are utilized, Moreover, it is unclear whether the road conditions and access for all of the assemblies is similar. Because there is a genuine issue of fact as to whether the YMCA and Veterans' Hall are similarly situated, both parties' motion for summary judgement are DENIED with regard to Saint Benedict Center's Equal Protection claim.
Saint Benedict Center asserts there is no rational basis for requiring a school obtain a variance if it is not located in the Lakeside district. As with the issue of summary judgement concerning equal protection and places of assembly, the Court would conclude that there are factual issues in disagreement that would call for DENIAL of summary judgement.
Issues of Violation of First Amendment and RLUIPA by Limiting Houses of Worship
Next, Saint Benedict Center contents that the Town violated RLUIPA by (1) unreasonably requiring a special exception before any house of worship may be built in the Town, and (2) by requiring Saint Benedict Center to obtain a special exception for its existing house of worship and a variance for its existing school, despite the fact that permits had been granted and such uses had been approved in the late 1980's.
The First Amendment prohits Congress from enacting any laws prohibiting the free exercise of religion. This clause applies to the state and local governments through the Fourteenth Amendment. Further, a municipality may not "entirely exclude a type of conduct that the First Amendment protects." RLUIPA provides that "{n}o government shall impose or implement a land use regulation that...totally excludes religious assemblies from a jurisdiction; or..unreasonably limits religious assemblies, institutions, or structures within a jurisdiction."
Thus, the first question is whether Richmond's regulations prohibit Saint Benedict Center from exercising its religion within the Town, such that the regulations violate the First Amendment. The second question is whether the regulations totally exclude religious assemblies from Richmond or whether they unreasonably limit such assemblies, institutions or structures, such that they violate RLUIPA.
Here, the Court is not persuaded that Richmond has effectively excludued houses of worship or religious assemblies from the Town. First, it is unclear whether the Town's actions have caused Saint Benedict Center's current religious use to be illegal in their current use. It appears that the parties disagree as to the effect of the board's ruling-Saint Benedict Center maintains that its current use would not have been permitted if it had failed to appeal the ZBA's determination, but the Town maintains that Saint Benedict Center's current use would have remained unaffected by the board's rulings.
It does not appear that the Town has totally excluded religious assemblies, institutions or structures from within its jurisdiction, or that it has barred Saint Benedict Center from engaging in religious expression. However, the ordiance scheme does limit where houses of worship and schools may be located. As applied in this case, the ordinance also apparently limits a religious organization from expanding its existing facilities.
In Vision, 468 F.3d at 990, the court concluded that requiring the religious organization to obtain a special use permit did not reasonably limit religious assemblies, institutions or structures because the Town official's authority was circumscribed by various factors it had to consider. However, the land use authority in that case had denied Vision's permit because it did not meet the strict size requirements set forth in the ordiance. The court there did not have occasion to consider whether the permit requirement was unreasonable if the standards for granting the permit left the decision up to the discretion of the board. In this case, while there is an avenue for obtaining special exceptions for houses of worship, it appears the standards for obtaining such an exception are entirely subjective, as discussed above. At the same time, however, Saint Benedict Center has not attempted to apply for a special exception, and the evidence also indicates that no other house of worship in the Town has attempted to apply for a special exception. Thus, at this point, it is not clear how easy or difficult it is to obtain a special exception.
The Court is persuaded that there remain issues of fact as to whether the requirement to obtain a special exception was a reasonable limitation on religious assemblies, institutions or structures. As far as whether the Town violated RLUIPA and the First Amendment by requiring Saint Benedict Center to obtain a special exception and variance for its current facility, it is unclear to the Court whether the Town in fact imposed such a requirement. Accordingly, both parties' motions for summary judgement are DENIED.
Issues of Violation of RLUIPA by Substantial Burden
Under the provisions of RLUIPA, "{n}o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious excercise of a person, including a religious assembly or institution, unless the government demonstartes that the imposition on that person, assebly, or institution...is in furtherance of a compelling governmental interest. Congress determined that the statute would apply in situations where the substantial burden (1) is "imposed on a program or activity that receives Federal financial assistance"; (2) "affects, or removal of the substantial burden would effect, commerce with foreign nations, among the several States, or with Indian tribes", or (3) "is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved."
Saint Benedict Center submits and the Court concurs, that the statute applies because the board's decisions can impact interstate commerce within the meaning of the statute...Thus the only remaining question is whether the Town had imposed a substantial burden on Saint Benedict Center's land use.
Saint Benedict Center maintains that although "substantial burden" has not been identified by the statute, and the federal circuit courts have not yet agreed upon a universal definition, it can show substantial burden under the most difficult test...Here, Saint Benedict Center contends the actions of the ZBA made Saint Benedict Center's practice of religion effectively impracticable. Because it contends the ZBA determined that a house of worship was not permitted without a special exception, then the ZBA had determined that Saint Benedict Center's current house of worship was illegal and thus could have shut down the facility if Saint Benedict Center had not brought an appeal. Moreover, Saint Benedict Center contended there was no guarantee that it would be granted a special exception if it had applied. Further, because the standards for granting a special exception are not precise or based on objective criteria, Saint Benedict Center contends that requiring Saint Benedict Center to obtain such an exception will impose a substantial burden.....
Further, Saint Benedict Center contends the actions of the Planning Board made construction of the new church/school effectively impracticable because the conditions are onerous, unreasonable and contray to law. Without the new facility, Saint Benedict Center maintains that it connot engage in the proper excercise of its religion. Moreover, because RLUIPA defines religious practice to include the construction of religious facilities...Saint Benedict Center argues that because the conditions place a substantial burden on its ability to construct its proposed house of worship and religious school, the the actions of the boards place a substantial burden on Saint Benedict Center's practice of religion.
The Town of Richmond responds that there is no substantial burden imposed because since the board's decisions, Saint Benedict Center has continued to operate its monastery, school, and house of worship. Further, Richmond maintains that the conditions are neutral and related to health and safety, and thus do not place a substantial burden on Saint Benedict Center's religious practice.
The question, therefore, is whether the actions of the Town have made the practice of religion effectively impracticable-whether that be Saint Benedict Center members' ability to worship/participate in religious proceedings or their ability to construct the new facility. First, it is not entirely clear to the Court whether the Town had determined that Saint Benedict Center's present use is unlawful and could not continue without special exception or variance. In the Town's Memorandum in Support of its Motion for Summary Judgement, the Town indicates that the board's actions are not limiting Saint Benedict Center's religious use. Also, the Court cannot find evidence in the certified record indicating that the Board's actions were intended to apply to Saint Benedict Center's existing uses. Because of this apparent factual dispute, the Court is not inclined to grant summary judgement in either party's favor.
Moreover, even if the Town's decisions had not impacted Saint Benedict Center's right to operate its current facility as-is, and had permitted Saint Benedict Center to hold religious assemblies and operate a religious school for over 20 years, this is not necessarily dispositive of the substantial burden.
The next question is whether the conditions imposed, or the requirement to obtain a special exception and variances impedes Saint Benedict Center's ability to construct their proposed facility. There is evidence to indicate that some of the conditions cannot be reasonably be satisfied within the required time frame, and the notice of decision indicates that if the conditions are not met, approval will be revoked. Regardless of whether the conditions somehow relate to health, safety or act to ensure the proposal fits into the Town's master plan, and regardless of whether they are neutral, RLUIPA's substantial burden test applies. There is sufficient evidence to indicate that some of the conditions cannot be satisfied as set forth in the approval. The Town has not presented evidence to indicate that all of the conditions can be satisfied within the time frame provided.
Accordingly, Saint Benedict Center's motion for summary judgement on the RLUIPA claim is granted to the extent Saint Benedict Center asserts that the Town has violated RLUIPA by imposing conditions on the site plan application that cannot be satisfied as laid out. To the extent Saint Benedict Center argues that thew Town had otherwise violate RLUIPA, the motion is DENIED. The Town's motion for summary judgement is DENIED.
Philip P. Mangones, Presiding Judge
10-23-09
Thursday, October 29, 2009
RICHMOND'S MOTION FOR PARTIAL SUMMARY JUDGEMENT (IMMUNITY OF THE INDIVIDUAL BOARD MEMBERS)
"Saint Benedict Center asserts that the members of the Planning Board and ZBA violated the Constitution and federal statutes by (1) applying unreasonable conditions to its site plan and (2) enforced zoning ordinances against Saint Benedict Center's existing religious school and house of worship. While there is no disagreement that these actions had been undertaken as part of the board member's official duties to pass on applications before them, Saint Benedict Center contends that the board members may be sued in their individual capacities on grounds that they had exceeded the scope of their official authority.
In its Motion for Summary Judgement, the Town of Richmond contends (1) the board members are entitled to quasi-judicial (absolute) immunity; (2) or, if not entitled to absolute immunity, then as government officials, the board members would at least entitled to qualified immunity for discretionary acts undertaken in the course of their official functions; (3) RLUIPA does not provide a cause of action against individuals - just "governments"; and (4) Planning Board member Charles Schroeder should be dismissed from this suit because he had not participated in the deliberations or decisions that Saint Benedict Center contests. Because the Court concludes that quasi-judicial immunity applies in this case, the Court does not address Richmond's additional arguments.
It is long established that a judge or judicial officer is afforded absolute immunity for acts committed within his or her judicial discretion, even if "the action he took was in error, was done maliciously, or was in excess of his authority...A judicial officer "will be subject to liability only when he has acted in the "clear absence of all jurisdiction."
Under certain circumstances, courts have extended this type of immunity to the members of administrative boards or other types of adjudicators when they act or make a decision while acting in a role that is "functionally comparable" to that of a judicial official....Factors to consider in determining whether absolute immunity is appropriate include (1) the need to assure the individual can perform his or her functions withour harassment and intimidation, (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (3) insulation from political influence, (4) the importance of precedent; (5) the adversarial nature of the process; and (6) the correctability of error on appeal.....
In this case, the land use board members had been acting within their authority when they made decisions regarding Saint Benedict Center's application. The Planning Board is authorized to review site plan applications and the ZBA is authorized to review a plan to determine whether it is consistent with town zoning requirements. ......While the decisions of the boards may have been erroneous, in that they may have considered improper factors, that does not mean the board members had been acting outside of their statutory authority to act on the applications.
The Court is persuaded that the Planning Board and ZBA were acting in a quasi-judicial capacity, such that absolute immunity for the board members is appropriate. First, immunity for members of the land use boards is appropriate to ensure that they can perform their functions without fear of harassment and intimidation; without such assurance, the voluteer members of boards would likely not want to serve......The Court is persuaded that this is a compelling reason to apply quasi-judicial immunity here.
Also, the proceedings before the Planning Board and ZBA have certain safeguards in place to protect complaining parties, including notice requirements and the necessity of having hearings. There are also avenues for appeal, either to the board itself or to the Superior and Supreme Courts. Further, the proceedings are sufficiently adversarial in a case like this, where the applicant seeks to utilize land in some way that the residents oppose.
Saint Benedict Center notes, that the Planning Board and ZBA members are elected, not appointed, and that the board's procedures do not require testimony to be given under oath, that there is no provision for cross-examination of witnesses, that the procedural requirements to the boards are not subject to strict scrutiny for technical compliance, and written decisions are only required for denials..Thus, proceedings before New Hampshire land use boards differ from the proceedings before boards involved in cases where courts have found quasi-judicial immunity....However, simply because the proceedings before the Planning Board and ZBA do not have all the attributes of a judicial court within this State does not mean that the individual board members are not entitled to absolute immunity...It bears noting that the immunity at issue is referred to as "quasi-judical," not strictly "judicial" immunity.
The New Hampshire Supreme Court has recognized certain land use proceedings as being quasi-judicial in nature, at least for recusal or disqualification purposes.....Further, it has also been recognized in the context of Planning Board and ZBA appeals that the board is the "trail forum" and the Superior Court is merely reviewing the board's actions for error....Language in the statute governing the ZBA also states that it is an administrative/quasi-judicial body. See RSA 674:13, 14, 33. Moreover, while the Planning Board's primary function is to prepare a master plan and advise the local legislative body about municipal planning, see RSA 674:1, the Board also has enforcement responsibilities. To enable the Board to exercise these enforcement responsibiliities, the legislature has granted it the ability to review site plans in a proceeding that involves procedural safeguards mentioned above, see RSA 676:4
Here, the Court is persuaded that even though the Planning Board and ZBA did not have in place all of the procedural requirements to be labeled a judicial forum, there were sufficient safeguards in place so the boards constitute quasi-judicial entities, the members of which should be entitled to absolute immunity for actions taken during the course of performing discretionary duties.
The Court is not persuaded by Saint Benedict Center's argument that the boards were acting in a strictly administrative capacity. The case law Saint Benedict Center cites in support of its arguments deals with the distinction between acts undertaken in administrative versus legislative capacities, not the administrative and judicial capacities...
The Court concludes that the ZBA and Planning Board proceedings are suffiently judicial in nature to warrant the application of quasi-judicial immunity. Accordingly, Richmond's Motion for Partial Summary Judgement is GRANTED. Because Richmond's first argument provides a basis for the relief requested, the Court need not address Richmond's additional immunity arguments."
Philip Mangones, Presiding Judge , Cheshire Superior Court
10-23-2009
In its Motion for Summary Judgement, the Town of Richmond contends (1) the board members are entitled to quasi-judicial (absolute) immunity; (2) or, if not entitled to absolute immunity, then as government officials, the board members would at least entitled to qualified immunity for discretionary acts undertaken in the course of their official functions; (3) RLUIPA does not provide a cause of action against individuals - just "governments"; and (4) Planning Board member Charles Schroeder should be dismissed from this suit because he had not participated in the deliberations or decisions that Saint Benedict Center contests. Because the Court concludes that quasi-judicial immunity applies in this case, the Court does not address Richmond's additional arguments.
It is long established that a judge or judicial officer is afforded absolute immunity for acts committed within his or her judicial discretion, even if "the action he took was in error, was done maliciously, or was in excess of his authority...A judicial officer "will be subject to liability only when he has acted in the "clear absence of all jurisdiction."
Under certain circumstances, courts have extended this type of immunity to the members of administrative boards or other types of adjudicators when they act or make a decision while acting in a role that is "functionally comparable" to that of a judicial official....Factors to consider in determining whether absolute immunity is appropriate include (1) the need to assure the individual can perform his or her functions withour harassment and intimidation, (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (3) insulation from political influence, (4) the importance of precedent; (5) the adversarial nature of the process; and (6) the correctability of error on appeal.....
In this case, the land use board members had been acting within their authority when they made decisions regarding Saint Benedict Center's application. The Planning Board is authorized to review site plan applications and the ZBA is authorized to review a plan to determine whether it is consistent with town zoning requirements. ......While the decisions of the boards may have been erroneous, in that they may have considered improper factors, that does not mean the board members had been acting outside of their statutory authority to act on the applications.
The Court is persuaded that the Planning Board and ZBA were acting in a quasi-judicial capacity, such that absolute immunity for the board members is appropriate. First, immunity for members of the land use boards is appropriate to ensure that they can perform their functions without fear of harassment and intimidation; without such assurance, the voluteer members of boards would likely not want to serve......The Court is persuaded that this is a compelling reason to apply quasi-judicial immunity here.
Also, the proceedings before the Planning Board and ZBA have certain safeguards in place to protect complaining parties, including notice requirements and the necessity of having hearings. There are also avenues for appeal, either to the board itself or to the Superior and Supreme Courts. Further, the proceedings are sufficiently adversarial in a case like this, where the applicant seeks to utilize land in some way that the residents oppose.
Saint Benedict Center notes, that the Planning Board and ZBA members are elected, not appointed, and that the board's procedures do not require testimony to be given under oath, that there is no provision for cross-examination of witnesses, that the procedural requirements to the boards are not subject to strict scrutiny for technical compliance, and written decisions are only required for denials..Thus, proceedings before New Hampshire land use boards differ from the proceedings before boards involved in cases where courts have found quasi-judicial immunity....However, simply because the proceedings before the Planning Board and ZBA do not have all the attributes of a judicial court within this State does not mean that the individual board members are not entitled to absolute immunity...It bears noting that the immunity at issue is referred to as "quasi-judical," not strictly "judicial" immunity.
The New Hampshire Supreme Court has recognized certain land use proceedings as being quasi-judicial in nature, at least for recusal or disqualification purposes.....Further, it has also been recognized in the context of Planning Board and ZBA appeals that the board is the "trail forum" and the Superior Court is merely reviewing the board's actions for error....Language in the statute governing the ZBA also states that it is an administrative/quasi-judicial body. See RSA 674:13, 14, 33. Moreover, while the Planning Board's primary function is to prepare a master plan and advise the local legislative body about municipal planning, see RSA 674:1, the Board also has enforcement responsibilities. To enable the Board to exercise these enforcement responsibiliities, the legislature has granted it the ability to review site plans in a proceeding that involves procedural safeguards mentioned above, see RSA 676:4
Here, the Court is persuaded that even though the Planning Board and ZBA did not have in place all of the procedural requirements to be labeled a judicial forum, there were sufficient safeguards in place so the boards constitute quasi-judicial entities, the members of which should be entitled to absolute immunity for actions taken during the course of performing discretionary duties.
The Court is not persuaded by Saint Benedict Center's argument that the boards were acting in a strictly administrative capacity. The case law Saint Benedict Center cites in support of its arguments deals with the distinction between acts undertaken in administrative versus legislative capacities, not the administrative and judicial capacities...
The Court concludes that the ZBA and Planning Board proceedings are suffiently judicial in nature to warrant the application of quasi-judicial immunity. Accordingly, Richmond's Motion for Partial Summary Judgement is GRANTED. Because Richmond's first argument provides a basis for the relief requested, the Court need not address Richmond's additional immunity arguments."
Philip Mangones, Presiding Judge , Cheshire Superior Court
10-23-2009
Wednesday, October 28, 2009
Comments are Encouraged
Comments related to the lawsuits are encouraged and will be posted on this site.
Reminder, It is NOT Over Until it is Over
Either side can ask Judge Mangones to reconsider any or all of the parts of his order.
"Richmond: Split Decision in Case"
Keene Sentinel article on Court decision:
http://keenesentinel.com.articles/2009/10/27/news/local/free/id_376877
http://keenesentinel.com.articles/2009/10/27/news/local/free/id_376877
COURT DECISIONS-23 OCTOBER 2009-BACKGROUND
This case arises out of determinations entered by the Town of Richmond Planning Board and the Town of Richmond Zoning Board of Adjustment ("ZBA"), which resulted in conditional approval for a site plane submitted by Saint Benedict Center, Inc. ("Saint Benedict Center" or "Center"). Saint Benedict Center has appealed the decisions to this Court, challenging a number of the conditions imposed by the Planning Board and also challenging the ZBA's determinations that a special exception is required for a house of worship and that a variance is required for a religious school. The Center also asserts that in making these decisions, the Town of Richmond ("Town" or "Richmond"), the land use boards, and the members of those boards individually, violated the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C & 1983, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. & 2000cc. Additionally the ZBA's determination that Saint Benedict Center's religious school constituted an accessory use to its house of worship. The Court has consolidated these actions.
There are various motions before the Court. First, the Town has filed a Motion for Partial Summary Judgement, asserting that the members of the land use boards are immune from liability in their individual capacities. Saint Benedict Center objects. Second, the Center has filed a Motion for Summary Judgement on its Constitutional and RLUIPA claims. Richmond has objected and filed a cross-motion for summary judgement on these claims. Boccalini has objected to Saint Benedict Center's motion and the Center has moved to strike that objection on the grounds that the town residents are not proper intervenors with respect to the cause of action based on constitutional and statutory violations. Third, Saint Benedict Center has moved for summary judgement (1) on Boccalini's claim that the ZBA erred when it determined the school was an accessory use, and (2) on its own appeals of the ZBA and Planning Board decisions. Boccalini and Richmond object to both motions. The Court finds and rules as follows:
The Court finds the following relevant facts for purposes of this order. Saint Benedict Center is a religious organization that seeks to build a church/classroom on property it owns off of Fay Martin Road in the Town of Richmond. Saint Benedict Center currently operates a house of worship and a small religious school in existing buildings at this location. These buildings had been constructed by the prior landowner, a separate religious group known as the Blessed Sacrament Community ("BSC"). The Blessed Sacrament Community had received permits for a garage and workshop, and then a house/monastery in 1987. When school improvements later appeared, the Town questioned whether they were consistent with the approvals that had been given. In 1988, the Blessed Sacrament Community submitted a site plan application, which was approved with certain conditions, including the condition that BSC install an alternate access road. The road was never built, but in 2004, the Planning Board released a portion of this property from the condition of approval to build the road.
In May of 19898, the Blessed Sacrament Community transfrred its property to Saint Benedict Center. In 1989, the selectmen approved a permit for completion and use of the building for educational/chapel/dowm uses , but did not require Saint Benedict Center to seek zoning relief. The building on site has been used as a chapel since the Fall of 1989 and as a school since 1990.
In the Fall of 2006, Saint Benedict Center submitted a site plan for an expanded house of worship/classroom building and the Planning Board accepted the application as complete. A variety of issues were discussed at the subsequent hearings, including the fact that most of Richmond is zoned residential, as well as concerns regarding the road providing access to Saint Benedict Center's site. The land use boards also heard evidence that the number of people attending Saint Benedict Center's religious services has increased since 1988.
The Town of Richmond Planning Board approved the site plan application with thirty conditions*. Saint Benedict Center takes issue with these conditions, in particular those: (1) requiring Saint Benedict Center to obtain a special exception for the house of worship and variance for the religious school,(2) requiring Saint Benedict Center to obtain wastewater permits that the state does not issue, (3) requiring Saint Benedict Center to procure and install a generator, (4) requiring the recording of documents that the Town woud not accept, (5) requiring Saint Benedict Center to shut off its existing water supply prior to the start of construction, and (6) requiring Saint Benedict Center to both submit a bond for and complete certain off-site road improvements. A member of the Planning Board had not consulted the site plan review regulations when he participated in the decision to require certain documents be recorded.
In connection with this site plan application. the ZBA agreed with the Planning Board that Saint Benedict Center must apply for a special exception and variance in order to proceed with its plans. Initially, the ZBA held that the school use was an accessory use and that a special exception or variance was not required. After rehearing, the ZBA reaffirmed its decision that the school was an accessory use but determined that a variance was required because it would be located in a residential district. The ZBA further concluded that a special exception was required for a house of worship in a residential zone. Saint Benedict Center contends that the effect of this ruling was that Saint Benedict Center needed to obtain a special exception for both its current and proposed school. While it appears that the ZBA had reached this decision in part because it acknowledged that Saint Benedict Center had not obtained special exceptions or variances in the past, one ZBA member indicated that he had not read the ordiance provisions in effect in the 1980's when the board of selectmen had given BSC a building permit for these very uses.
Throughout this appeal, Saint Benedict Center maintains that it had been merely requesting permission to expand uses that are currently permitted. However, it appears that the Planning Board and ZBA have treated the site plan application for a church/classroom building as constituting new use, separate from uses that Saint Benedict Center currently engages in.
Saint Benedict Center contends that the Town's actions are unreasonable and unlawful, violate RLUIPA, Section 1983 and the Constitution because those actions have interferred with Saint Benedict Center members' ability to practice religion. Specifically, Saint Benedict Center contends that the Town's actions have limited Saint Benedict Center's ability to accommodate all of those individuals interested in attending Saint Benedict Center's school and religious proceedings, and also prevent Saint Benedict Center members from engaging in the proper excercise of their faith.
A moving party is entitled to summary judgement if the pleadings, admissions and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law." The Court must consider the evidence presented on summary judgement in the light most favorable to the non-moving party, giving the non-moving party the benefit of all favorable inferences that may be reasonably drawn from the evidence.
Before the Court are the following motions: (1) Richmond's Motion for Partial Summary Judgement on the issue of immunity of the indivdual members, (2) Saint Benedict Center's Motion and Richmond's Cross-Motion for Summary Judgement on Saint Benedict Center's Constitutional and RLUIPA claims, (3) Saint Benedict Center's Motion for Summary Judgement on Boccalini's Appeal of the ZBA's decision regarding Accessory Use, and (4) Saint Benedict Center's Motion for Summary Judgement of Saint Benedict Center's State Law Apeals. The Court will address each in turn."
Philip P Mangones, Presiding Justice, Cheshire Superior Court
* the 30 conditions are listed on this blog on posting date 10/12/2009
This blog will over the next week or 2 post each of the motions the Court addressed
There are various motions before the Court. First, the Town has filed a Motion for Partial Summary Judgement, asserting that the members of the land use boards are immune from liability in their individual capacities. Saint Benedict Center objects. Second, the Center has filed a Motion for Summary Judgement on its Constitutional and RLUIPA claims. Richmond has objected and filed a cross-motion for summary judgement on these claims. Boccalini has objected to Saint Benedict Center's motion and the Center has moved to strike that objection on the grounds that the town residents are not proper intervenors with respect to the cause of action based on constitutional and statutory violations. Third, Saint Benedict Center has moved for summary judgement (1) on Boccalini's claim that the ZBA erred when it determined the school was an accessory use, and (2) on its own appeals of the ZBA and Planning Board decisions. Boccalini and Richmond object to both motions. The Court finds and rules as follows:
The Court finds the following relevant facts for purposes of this order. Saint Benedict Center is a religious organization that seeks to build a church/classroom on property it owns off of Fay Martin Road in the Town of Richmond. Saint Benedict Center currently operates a house of worship and a small religious school in existing buildings at this location. These buildings had been constructed by the prior landowner, a separate religious group known as the Blessed Sacrament Community ("BSC"). The Blessed Sacrament Community had received permits for a garage and workshop, and then a house/monastery in 1987. When school improvements later appeared, the Town questioned whether they were consistent with the approvals that had been given. In 1988, the Blessed Sacrament Community submitted a site plan application, which was approved with certain conditions, including the condition that BSC install an alternate access road. The road was never built, but in 2004, the Planning Board released a portion of this property from the condition of approval to build the road.
In May of 19898, the Blessed Sacrament Community transfrred its property to Saint Benedict Center. In 1989, the selectmen approved a permit for completion and use of the building for educational/chapel/dowm uses , but did not require Saint Benedict Center to seek zoning relief. The building on site has been used as a chapel since the Fall of 1989 and as a school since 1990.
In the Fall of 2006, Saint Benedict Center submitted a site plan for an expanded house of worship/classroom building and the Planning Board accepted the application as complete. A variety of issues were discussed at the subsequent hearings, including the fact that most of Richmond is zoned residential, as well as concerns regarding the road providing access to Saint Benedict Center's site. The land use boards also heard evidence that the number of people attending Saint Benedict Center's religious services has increased since 1988.
The Town of Richmond Planning Board approved the site plan application with thirty conditions*. Saint Benedict Center takes issue with these conditions, in particular those: (1) requiring Saint Benedict Center to obtain a special exception for the house of worship and variance for the religious school,(2) requiring Saint Benedict Center to obtain wastewater permits that the state does not issue, (3) requiring Saint Benedict Center to procure and install a generator, (4) requiring the recording of documents that the Town woud not accept, (5) requiring Saint Benedict Center to shut off its existing water supply prior to the start of construction, and (6) requiring Saint Benedict Center to both submit a bond for and complete certain off-site road improvements. A member of the Planning Board had not consulted the site plan review regulations when he participated in the decision to require certain documents be recorded.
In connection with this site plan application. the ZBA agreed with the Planning Board that Saint Benedict Center must apply for a special exception and variance in order to proceed with its plans. Initially, the ZBA held that the school use was an accessory use and that a special exception or variance was not required. After rehearing, the ZBA reaffirmed its decision that the school was an accessory use but determined that a variance was required because it would be located in a residential district. The ZBA further concluded that a special exception was required for a house of worship in a residential zone. Saint Benedict Center contends that the effect of this ruling was that Saint Benedict Center needed to obtain a special exception for both its current and proposed school. While it appears that the ZBA had reached this decision in part because it acknowledged that Saint Benedict Center had not obtained special exceptions or variances in the past, one ZBA member indicated that he had not read the ordiance provisions in effect in the 1980's when the board of selectmen had given BSC a building permit for these very uses.
Throughout this appeal, Saint Benedict Center maintains that it had been merely requesting permission to expand uses that are currently permitted. However, it appears that the Planning Board and ZBA have treated the site plan application for a church/classroom building as constituting new use, separate from uses that Saint Benedict Center currently engages in.
Saint Benedict Center contends that the Town's actions are unreasonable and unlawful, violate RLUIPA, Section 1983 and the Constitution because those actions have interferred with Saint Benedict Center members' ability to practice religion. Specifically, Saint Benedict Center contends that the Town's actions have limited Saint Benedict Center's ability to accommodate all of those individuals interested in attending Saint Benedict Center's school and religious proceedings, and also prevent Saint Benedict Center members from engaging in the proper excercise of their faith.
A moving party is entitled to summary judgement if the pleadings, admissions and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law." The Court must consider the evidence presented on summary judgement in the light most favorable to the non-moving party, giving the non-moving party the benefit of all favorable inferences that may be reasonably drawn from the evidence.
Before the Court are the following motions: (1) Richmond's Motion for Partial Summary Judgement on the issue of immunity of the indivdual members, (2) Saint Benedict Center's Motion and Richmond's Cross-Motion for Summary Judgement on Saint Benedict Center's Constitutional and RLUIPA claims, (3) Saint Benedict Center's Motion for Summary Judgement on Boccalini's Appeal of the ZBA's decision regarding Accessory Use, and (4) Saint Benedict Center's Motion for Summary Judgement of Saint Benedict Center's State Law Apeals. The Court will address each in turn."
Philip P Mangones, Presiding Justice, Cheshire Superior Court
* the 30 conditions are listed on this blog on posting date 10/12/2009
This blog will over the next week or 2 post each of the motions the Court addressed
Monday, October 26, 2009
Court Decisions
In a 32 page decision filed at Cheshire Superior Court on 10/23/09:
The Conclusions:
1. Richmond's Motion for Partial Summary Judgment on the issue of immunity is GRANTED.
2. Saint Benedict Center's Motion for Summary Judgement on Constitutional and RLUIPA issues is GRANTED to the extent that (a) the requirement that Saint Benedict Center obtain a special exception was an unconstitutional prior restraint on First Amendment rights, and (b) the Town violated RLUIPA by imposing conditions on the site plan application that cannot be satisfied as provided; the motion is DENIED in all other aspects.
3. Richmond's Cross-Motion for Summary Judgement on Constitutional and RLUIPA issues is DENIED.
4. Saint Benedict Center's Motion to Strike Boccalini's Objection to Saint Benedict Center's Motion for Summary Judgement on Constitutional and RLUIPA issues is DENIED.
5. Saint Benedict Center's Motion for Summary Judgement (State Law Appeals) is DENIED.
6. Boccalini's Motion for Summary Judgement (Accessory Use) is DENIED.
7. Consideration of St. Benedict Center's Motion to Compel is DEFFERED until St. Benedict Center requests a ruling on motion after further materials have been provided.
So Ordered
Philip P Mangones
Presiding Judge
More details on each of the rulings will be in future posts.
This DOES NOT mean the trial scheduled for March 2010 is off.
The Conclusions:
1. Richmond's Motion for Partial Summary Judgment on the issue of immunity is GRANTED.
2. Saint Benedict Center's Motion for Summary Judgement on Constitutional and RLUIPA issues is GRANTED to the extent that (a) the requirement that Saint Benedict Center obtain a special exception was an unconstitutional prior restraint on First Amendment rights, and (b) the Town violated RLUIPA by imposing conditions on the site plan application that cannot be satisfied as provided; the motion is DENIED in all other aspects.
3. Richmond's Cross-Motion for Summary Judgement on Constitutional and RLUIPA issues is DENIED.
4. Saint Benedict Center's Motion to Strike Boccalini's Objection to Saint Benedict Center's Motion for Summary Judgement on Constitutional and RLUIPA issues is DENIED.
5. Saint Benedict Center's Motion for Summary Judgement (State Law Appeals) is DENIED.
6. Boccalini's Motion for Summary Judgement (Accessory Use) is DENIED.
7. Consideration of St. Benedict Center's Motion to Compel is DEFFERED until St. Benedict Center requests a ruling on motion after further materials have been provided.
So Ordered
Philip P Mangones
Presiding Judge
More details on each of the rulings will be in future posts.
This DOES NOT mean the trial scheduled for March 2010 is off.
Saturday, October 24, 2009
NOTICE OF TRIAL-SBC V TOWN OF RICHMOND AND THE RICHMOND 12
The Court will conduct a TRIAL MANAGEMENT CONFERENCE in this case at the Superior Court in Keene on : February 16, 2010 at 11:00am.
Counsel and Parties shall report for JURY SELECTION on: March 1, 2010 at 9:00 am.
JURY TRIAL shall occur during the week (s) OF : 03/01/2010; 03/08/2010
Trial counsel, or parties if unrepresented, shall appear at the Trial Management Conference; clients shall appear at the conference or be available for contact by telephone. Counsel and clients shall be prepared to discuss and effectuate settlement and, if necessary, conduct of the trial.
Counsel shall file all pre-trial motions, including motions in limine, at least ten days prior to the Trial Management Conference.
Counsel shall file witness lists and exhibit lists at the Trial Management Conference.
All pending motions shall be heard at the Trial Management Conference, or, if necessary, at another time set by the court.
PLEASE NOTE THIS IS THE #1 CIVIL CASE BUT BACKUP TO CRIMINAL JURY TRIALS.
Please advise clients, witnesses, and others that it is a class B felony to carry a firearm or other deadly weapon as defined in RSA 625:11,V in a courtroom or area used by a court.
BY ORDER OF THE SUPERIOR COURT
Barbara Hogan
Clerk of Court
10/22/2009
Counsel and Parties shall report for JURY SELECTION on: March 1, 2010 at 9:00 am.
JURY TRIAL shall occur during the week (s) OF : 03/01/2010; 03/08/2010
Trial counsel, or parties if unrepresented, shall appear at the Trial Management Conference; clients shall appear at the conference or be available for contact by telephone. Counsel and clients shall be prepared to discuss and effectuate settlement and, if necessary, conduct of the trial.
Counsel shall file all pre-trial motions, including motions in limine, at least ten days prior to the Trial Management Conference.
Counsel shall file witness lists and exhibit lists at the Trial Management Conference.
All pending motions shall be heard at the Trial Management Conference, or, if necessary, at another time set by the court.
PLEASE NOTE THIS IS THE #1 CIVIL CASE BUT BACKUP TO CRIMINAL JURY TRIALS.
Please advise clients, witnesses, and others that it is a class B felony to carry a firearm or other deadly weapon as defined in RSA 625:11,V in a courtroom or area used by a court.
BY ORDER OF THE SUPERIOR COURT
Barbara Hogan
Clerk of Court
10/22/2009
Thursday, October 22, 2009
Court Hearing October 21st
A hearing was held at Cheshire Superior Court on Wednesday, October 21st. The judge confirmed the final Pre-Trial date of February 16, 2010 and a 2 week trial to begin in March 2010. The Judge also indicated that rulings on the numerous Summary Motions will come down late this week or early next week.
Monday, October 19, 2009
Mark Your Calendars, Final Pre-Trial Date Set
07-E-0101 St. Benedict Center, Inc. v. Town of Richmond, Planning Board
08-E-0005 John Boccalini, et al v Town of Richmond & Zoning Board
08-E-0006 St. Benedict Center, Inc. v Town of Richmond & ZBA
The above-referenced cases have been scheduled before Judge Philip P. Mangones for the following:
FINAL PRE-TRIAL
Date: February 16, 2010
Time: 11:00 AM
Location: Cheshire Superior Court Courtroom 2
12 Court Street
Keene NH 03431
Time allotted for this hearing: 30 min.
As of 11/1/2009, Judge Mangones will be sitting in Sullivan and Merrimack Counties. He will be sitting here for this hearing.
BY ORDER OF THE SUPERIOR COURT
Barbara Hogan
Clerk of Court
10/15/2009
08-E-0005 John Boccalini, et al v Town of Richmond & Zoning Board
08-E-0006 St. Benedict Center, Inc. v Town of Richmond & ZBA
The above-referenced cases have been scheduled before Judge Philip P. Mangones for the following:
FINAL PRE-TRIAL
Date: February 16, 2010
Time: 11:00 AM
Location: Cheshire Superior Court Courtroom 2
12 Court Street
Keene NH 03431
Time allotted for this hearing: 30 min.
As of 11/1/2009, Judge Mangones will be sitting in Sullivan and Merrimack Counties. He will be sitting here for this hearing.
BY ORDER OF THE SUPERIOR COURT
Barbara Hogan
Clerk of Court
10/15/2009
Defendent's Response to SBC's Third Motion to Compel
Filed at Cheshire Superior Court
October 8, 2009
1. Saint Benedict Center has filed a motion to compel in which it requests certain documents related to the Fay Martin Road bridge. Specifically, SBC has requested documents or communications between David Tower (regardless whether he is purporting to act on behalf of the Town of Richmond or Town of Fitzwilliam; and Attorney Gary Sheldon (attorney for the logger of Lakeville Shores) and/or Attorney John Cronin (attorney for the logger Northeast Harvester) and/or the State of New Hampshire and/or Clough Harbor & Associates and/or any other person regarding the Fay Martin Bridge.
2. The Saint Benedict Center has also requested communications between any official in the Town of Richmond and any other official in the Town of Richmond and Attorney Gary Sheldon (attorney for the logger Lakeville Shores) and/or Attorney John Cronin (attorney for the logger Northeast Harvester) and/or the State of New Hampshire and/or Clough Harbor & Associates and/or any other person regarding Fay Marin Road bridge.
3. Counsel for the Town of Richmond in this litigation has has produced certain documents in the possession of the Town and has also produced a privilege log identifying documents which the Town believes is privileged. In addition, counsel for the Town has contacted Attorney David Tower and requested Attorney Tower forward ant documents he has relating to the Fay Martin bridge. At the time of this response, Attorney Tower has not been able to produce the documents to counsel for the Town and counsel for the Town has not had a chance to review them. Counsel for the Town expects to be able to review them shortly and will provide either the documents or a privilege log stating why the documents are privileged.
4. Accordingly, because documents which were the subject of the Motion to Compel have been produced or a privilege log has been produced or counsel for the Town is obtaining further documents for review to be produced, the Motion to Compel is now moot and the Court need not issue an order on it.
WHEREFORE, the Town of Richmond respectfully requests this Honorable Court:
A. Deny the Motion to Compel
B. Grant such other and further relief as may be just and proper
October 8, 2009
1. Saint Benedict Center has filed a motion to compel in which it requests certain documents related to the Fay Martin Road bridge. Specifically, SBC has requested documents or communications between David Tower (regardless whether he is purporting to act on behalf of the Town of Richmond or Town of Fitzwilliam; and Attorney Gary Sheldon (attorney for the logger of Lakeville Shores) and/or Attorney John Cronin (attorney for the logger Northeast Harvester) and/or the State of New Hampshire and/or Clough Harbor & Associates and/or any other person regarding the Fay Martin Bridge.
2. The Saint Benedict Center has also requested communications between any official in the Town of Richmond and any other official in the Town of Richmond and Attorney Gary Sheldon (attorney for the logger Lakeville Shores) and/or Attorney John Cronin (attorney for the logger Northeast Harvester) and/or the State of New Hampshire and/or Clough Harbor & Associates and/or any other person regarding Fay Marin Road bridge.
3. Counsel for the Town of Richmond in this litigation has has produced certain documents in the possession of the Town and has also produced a privilege log identifying documents which the Town believes is privileged. In addition, counsel for the Town has contacted Attorney David Tower and requested Attorney Tower forward ant documents he has relating to the Fay Martin bridge. At the time of this response, Attorney Tower has not been able to produce the documents to counsel for the Town and counsel for the Town has not had a chance to review them. Counsel for the Town expects to be able to review them shortly and will provide either the documents or a privilege log stating why the documents are privileged.
4. Accordingly, because documents which were the subject of the Motion to Compel have been produced or a privilege log has been produced or counsel for the Town is obtaining further documents for review to be produced, the Motion to Compel is now moot and the Court need not issue an order on it.
WHEREFORE, the Town of Richmond respectfully requests this Honorable Court:
A. Deny the Motion to Compel
B. Grant such other and further relief as may be just and proper
Wednesday, October 14, 2009
Road Agent Indicates Selectmen Failed to Produce Documents
In their decision approving the SBC site plan the Richmond Planning Board made 5 conditions (2,4,6,7,9 see Posting on Monday Oct 12, 2009) concerning the bridge over Tully Brook on Fay Martin Road. The SBC has filed a number of motions to the Court concerning this bridge. The latest was filed at Cheshire Superior Court on September 29,2009. This was a Third Motion to Compel.
1. Saint Benedict Center is accessible via the Fay Martin Road Bridge, a wooden, municipally owned bridge. As part of the site plan review in 2007, the Planning Board had the Town's engineers review the condition of Fay Martin Road Bridge and the Town's engineers concluded that the bridge was adequate to handle current traffic and expected increases that would result from the church's expansion.
2. Subsequent to site plan review and while this case was pending, multiple logging trucks in excess of the posted weight limit traversed Fay Martin Road Bridge.
3. After the logging trucks traversed the bridge, the Town's engineers then opined in 2008 that the bridge would now have to be replaced. The Town applied for and was granted state bridge aid but it may take some time before state funds are available.
4. In October 2008 a different logging company, Lakeville Shores, arranged to use Fay Martin Road Bridge in excess of the weight limit by entering into secret agreements with the Selectmen. The logging company, under supervision of the Town, installed a steel bridge over the existing wooden bridge. The logging company had "borrowed" this bridge from the Town of Fitzwilliam who had obtained this steel bridge from the State of New Hampshire when Fitzwilliam was in need of a temporary steel bridge. The State of New Hampshire and the Town of Richmond Road Agent all advised that this temporary steel bridge be left in place until the Town obtained state funds to erect a permanent new bridge.
5. On November 12, 2008, SBC made a request for public records for all Town documents relating to the bridge. The Town produced some documents but none of the communications between Selectmen and the Road Agent concerning the Bridge nor any of the communications between the logger and the Selectmen concerning the Bridge.
6. In interrogatories received March 3, 2009, the Town was requested to provide all communications and documents concerning Fay Martin Road Bridge. The Town did not produce any documents but stated that they were documents on file at the Town Hall and the Town was not withholding any documents under a claim of privilege.
7. At the Deposition of Road Agent Dana Taylor on May 15, 2009 the Road Agent indicated that there were documents relating to the Bridge that the Selectmen had and were not produced. SBC requested the Town produce these documents and the Town attorney agreed to look into it but never produced the documents or a privilege log.
Included in this motion was a section from the second deposition of Dana Taylor taken on May 15, 2009.
"A. Again, it's in the e-mails. They--well, after I talked to Mr. Meade--I wrote in the stuff I wrote in the stuff I gave you today, you didn't have it from my interrogatories--I told them what Mr. Meade said, and they said that they were going to take the bridge out per the agreement, and that I--you know, they hinted that I was supposed to do it, and I told them it had nothing to do with me, I didn't even know they put the bridge in.
Q. What was this agreement between---
A. I don't know, I've never seen it.
Q. Do you understand it to be a verbal agreement or --
A. I believe it was something they did in writing between Chamberlands's attorney, whoever that is, and --again, I don't know which one, but from Jaffrey law.
Mr. Tierney: I'm going to ask the town counsel to see if he can have a copy of that agreement produced responsive to past interrogatories.
Mr. Mullen: Uh-hum
Mr. Tierney: I don't think it's
necessary to have a formal request.
Mr. Mullen: No, I'll ask.
A. There's on of my e-mails in there I put up a fuss about not having seen the agreement.
Q. Before we move away from this map, why don't we have that Google map marked so we know what we're referring to.
(Taylor Exhibit No. 13 was marked for identification.)
Q. Who owns this temporary bridge that was put in by Chamberland?
A. The state.
Q. The state of New Hampshire owns it?
A. Yes
Q. Has the state of New Hampshire asked that the bridge be removed?
A. No, they recommended I leave it there.
Q. The state wants the bridge to be there because the bridge is stronger and safer than the original bridge?
A. Absolutely. That's the way Mr. Meade presented it the day I talked to him.
Q. Have you ever been told by the Board of ........"
8. On June 30, 2009, SBC again requested documents relating to the bridge and in particular the letters the Selectmen asked asked Town Counsel David Tower to write on behalf of the Town of Richmond to the logger's attorney Gary Sheldon demanding that the steel bridge be removed within 20 days. The Town refused to produce these letters claiming it was attorney client privledged. In a telephone conversation with Town counsel, the Town further refused to produce copies of correspondence from October 2008 where the Selectmen entered into an agreement with the logger regarding the bridge and other documents in Town Counsel's possession regarding the bridge. Town counsel argued as long as he has copies of it, it is attorney client privileged.
9. On July 15, 2009 SBC filed a Motion for Summary Judgement wherein it stated that the bridge issue was rendered moot due to the Town's temporary steel bridge and the Town's plans to put in a new permanent bridge regardless of whether the church expands.
10. On July 30, 2009, the Town had the steel bridge removed,
11. There is no basis for the Town's argument that relevant documents regarding the Town's agreement with the logger regarding the Bridge, the Town's demand that the logger remove the Bridge, communication in the summer of 2009 with the engineering firm Clough Harbor and Associates regarding the Bridge or communications between various Town officials regarding the Bridge are privileged simply because they carbon copied Town Counsel or were written by the Town Counsel to a third party's attorney on behalf of the Selectmen. The Town has previously made the same argument that documents in prior Town Counsel Tom Mullins possession were privileged because the documents were given to Town Counsel. The Court soundly rejected the Town's argument in its Order dated October 9, 2008.
12. Nevertheless, contrary to this Court's Order of October 9, 2008 and without any basis in law, the Town has stubbornly refused to produce relevant documents regarding the Fay Martin Road Bridge."
1. Saint Benedict Center is accessible via the Fay Martin Road Bridge, a wooden, municipally owned bridge. As part of the site plan review in 2007, the Planning Board had the Town's engineers review the condition of Fay Martin Road Bridge and the Town's engineers concluded that the bridge was adequate to handle current traffic and expected increases that would result from the church's expansion.
2. Subsequent to site plan review and while this case was pending, multiple logging trucks in excess of the posted weight limit traversed Fay Martin Road Bridge.
3. After the logging trucks traversed the bridge, the Town's engineers then opined in 2008 that the bridge would now have to be replaced. The Town applied for and was granted state bridge aid but it may take some time before state funds are available.
4. In October 2008 a different logging company, Lakeville Shores, arranged to use Fay Martin Road Bridge in excess of the weight limit by entering into secret agreements with the Selectmen. The logging company, under supervision of the Town, installed a steel bridge over the existing wooden bridge. The logging company had "borrowed" this bridge from the Town of Fitzwilliam who had obtained this steel bridge from the State of New Hampshire when Fitzwilliam was in need of a temporary steel bridge. The State of New Hampshire and the Town of Richmond Road Agent all advised that this temporary steel bridge be left in place until the Town obtained state funds to erect a permanent new bridge.
5. On November 12, 2008, SBC made a request for public records for all Town documents relating to the bridge. The Town produced some documents but none of the communications between Selectmen and the Road Agent concerning the Bridge nor any of the communications between the logger and the Selectmen concerning the Bridge.
6. In interrogatories received March 3, 2009, the Town was requested to provide all communications and documents concerning Fay Martin Road Bridge. The Town did not produce any documents but stated that they were documents on file at the Town Hall and the Town was not withholding any documents under a claim of privilege.
7. At the Deposition of Road Agent Dana Taylor on May 15, 2009 the Road Agent indicated that there were documents relating to the Bridge that the Selectmen had and were not produced. SBC requested the Town produce these documents and the Town attorney agreed to look into it but never produced the documents or a privilege log.
Included in this motion was a section from the second deposition of Dana Taylor taken on May 15, 2009.
"A. Again, it's in the e-mails. They--well, after I talked to Mr. Meade--I wrote in the stuff I wrote in the stuff I gave you today, you didn't have it from my interrogatories--I told them what Mr. Meade said, and they said that they were going to take the bridge out per the agreement, and that I--you know, they hinted that I was supposed to do it, and I told them it had nothing to do with me, I didn't even know they put the bridge in.
Q. What was this agreement between---
A. I don't know, I've never seen it.
Q. Do you understand it to be a verbal agreement or --
A. I believe it was something they did in writing between Chamberlands's attorney, whoever that is, and --again, I don't know which one, but from Jaffrey law.
Mr. Tierney: I'm going to ask the town counsel to see if he can have a copy of that agreement produced responsive to past interrogatories.
Mr. Mullen: Uh-hum
Mr. Tierney: I don't think it's
necessary to have a formal request.
Mr. Mullen: No, I'll ask.
A. There's on of my e-mails in there I put up a fuss about not having seen the agreement.
Q. Before we move away from this map, why don't we have that Google map marked so we know what we're referring to.
(Taylor Exhibit No. 13 was marked for identification.)
Q. Who owns this temporary bridge that was put in by Chamberland?
A. The state.
Q. The state of New Hampshire owns it?
A. Yes
Q. Has the state of New Hampshire asked that the bridge be removed?
A. No, they recommended I leave it there.
Q. The state wants the bridge to be there because the bridge is stronger and safer than the original bridge?
A. Absolutely. That's the way Mr. Meade presented it the day I talked to him.
Q. Have you ever been told by the Board of ........"
8. On June 30, 2009, SBC again requested documents relating to the bridge and in particular the letters the Selectmen asked asked Town Counsel David Tower to write on behalf of the Town of Richmond to the logger's attorney Gary Sheldon demanding that the steel bridge be removed within 20 days. The Town refused to produce these letters claiming it was attorney client privledged. In a telephone conversation with Town counsel, the Town further refused to produce copies of correspondence from October 2008 where the Selectmen entered into an agreement with the logger regarding the bridge and other documents in Town Counsel's possession regarding the bridge. Town counsel argued as long as he has copies of it, it is attorney client privileged.
9. On July 15, 2009 SBC filed a Motion for Summary Judgement wherein it stated that the bridge issue was rendered moot due to the Town's temporary steel bridge and the Town's plans to put in a new permanent bridge regardless of whether the church expands.
10. On July 30, 2009, the Town had the steel bridge removed,
11. There is no basis for the Town's argument that relevant documents regarding the Town's agreement with the logger regarding the Bridge, the Town's demand that the logger remove the Bridge, communication in the summer of 2009 with the engineering firm Clough Harbor and Associates regarding the Bridge or communications between various Town officials regarding the Bridge are privileged simply because they carbon copied Town Counsel or were written by the Town Counsel to a third party's attorney on behalf of the Selectmen. The Town has previously made the same argument that documents in prior Town Counsel Tom Mullins possession were privileged because the documents were given to Town Counsel. The Court soundly rejected the Town's argument in its Order dated October 9, 2008.
12. Nevertheless, contrary to this Court's Order of October 9, 2008 and without any basis in law, the Town has stubbornly refused to produce relevant documents regarding the Fay Martin Road Bridge."
Tuesday, October 13, 2009
The Lawyers
SAINT BENEDICT CENTER (SBC)
Michael Tierney
Wadleigh, Starr & Peters
Manchester NH
Dean Eggert
Wadleigh, Starr & Peters
Manchester NH
Robert Carbone
SBC Prefect and SBC General Counsel
Licensed in MA but not NH
Richmond NH
Barrett Faulkner
Former SBC Attorney
Keene NH
TOWN
Daniel Mullen
LGLS
Ransmeir & Spellman
Concord NH
David Tower
Richmond Town Counsel
Tower & Crocker
Jaffery NH
Thomas Mullins
Former Richmond Town Counsel
Tower, Crocker & Mullins
Jaffery NH
INTERVENORS
John Bisson
Manchester NH
OTHER
Johnathan Teitel
US Department of Justice
Washington DC
Beth Fernald
Attorney for Russell Provost
Keene NH
Gary Sheldon
Attorney for Logger Lakeville Shores
Keene NH
John Cronin
Attorney for Logger Northeast Harvesters
Bennington NH
Michael Tierney
Wadleigh, Starr & Peters
Manchester NH
Dean Eggert
Wadleigh, Starr & Peters
Manchester NH
Robert Carbone
SBC Prefect and SBC General Counsel
Licensed in MA but not NH
Richmond NH
Barrett Faulkner
Former SBC Attorney
Keene NH
TOWN
Daniel Mullen
LGLS
Ransmeir & Spellman
Concord NH
David Tower
Richmond Town Counsel
Tower & Crocker
Jaffery NH
Thomas Mullins
Former Richmond Town Counsel
Tower, Crocker & Mullins
Jaffery NH
INTERVENORS
John Bisson
Manchester NH
OTHER
Johnathan Teitel
US Department of Justice
Washington DC
Beth Fernald
Attorney for Russell Provost
Keene NH
Gary Sheldon
Attorney for Logger Lakeville Shores
Keene NH
John Cronin
Attorney for Logger Northeast Harvesters
Bennington NH
Monday, October 12, 2009
THE ORIGINAL CONDITIONS
The following is the original "Notice of Decision" regard the SBC Site Plan Application.
On May 9, 2007 the Town of Richmond Planning Board voted five votes in favor and one opposed to APPROVE WITH CONDITIONS, the Saint Benedict Center, Inc., ("Applicant") Site Plan Application dated October 3, 2006, together with Plan Sheets S1.0, C2.0-2.2, C3.0-3.2, C4.o, C5.0, C6.0, C7.0, C8.0, SS1.0, SS2.0, SS3.0, A1-1, A3-1, A3-2, LA-1, LA-2, LA-3 (all incorporated by reference herein as "Site Plan") and accepted by the Planning Board on December 5, 2006. The conditions of such Site Plan approval are as follows:
Necessity of the Conditions
If the following conditions are not met in their entirety, the Site Plan is considered scattered and premature and is not approved.
Zoning
1. Applicant must obtain from the ZBA a special exception for a house of worship in a residential zone as well as a determination as to whether or not a school is an allowed accessory use to this house of worship. If a school is not an allowed accessory use to an approved house of worship, the applicant must get a variance from the ZBA. (12)
Fay Martin Road and Bridge
2. Construction may only be started on the new building after completion of bridge, improvements to Fay Martin Road, and recording of the lot mergers, all stated herein. (Post ROD) (2YRS.)
3. The Applicant is responsible for upgrading of Fay Martin Road to extend from the east end of the bridge over Tully Brook on the entrance to Fay Martin Road to the utility pole #13 (PSNH436/9) near the driveway of the former Steve Boscarino property (Map 412 Lot 19).
4. The bridge over Tully Brook must be replaced with a two-lane bridge, minimum 50 ton capacity.
5. Posting of a bond or irrevocable letter of credit for improvements to the bridge on Fay Martin Road, the Fay Martin Road (from the bridge to the former Steve Boscarino property, Map 412 Lot 19), and the "fire pond access road" from Fay Martin Road to the dry hydrant at the approved fire pond must be done prior to recording at the Registry of Deeds, or the roads and bridge improvements are completed before recording. (12)
6. The bridge on Fay Martin Road must be constructed as well as the specified improvements done to the Fay Martin Road and to the "fire pond access road"> Construction of the road and bridge shall comply with the "Fay Martin Road Layout Report" items 7-10 as supplied by the Board of Selectmen. (Post ROD) (2 YRS.) Construction of the road and bridge shall comply with the "Fay Martin Layout Report" items7-10 as supplied by the Board of Selectmen.
7. Because of the safety concerns related to the Fay Martin Road Bridge, the replacement of the bridge must be completed prior to the commencement of any road and site construction. After completion of the bridge and road improvements to the Fay Martin Road including 2.5 inch binder layer of paving and improvements to the "fire pond access road," all other construction proposed in the submitted plats may be started. (2YRS.) The 1.5 inch top coat of paving is to be installed within 9 months of completion of heavy construction and prior to issuance of assembly/occupancy permit of the new building. The Applicant is responsible for the repair of any damage to the road related to the construction of the site.
8. The Applicant must upgrade and maintain the fire lane access road year round from Fay Martin Road to the dry hydrant at the fire pond with the specification standards of 50-200 from Appendix 4 of the Subdivision Regulations.
9. The Applicant must bear full financial responsibility for the specified upgrading of the Fay Martin Road, the "fire pond access road," including engineering costs required by the PB, as well as any easement expenses associated with road improvements and bridge construction. The Applicant will be responsible for 50% of the cost of the proposed new two lane bridge and associated bridge engineering costs.
Safety
10. The Applicant is responsible for compliance with all local and state fire safety codes as approved by State Fire Marshall and Town of Richmond Fire Chief.
11. Because of septic system pumping needs, emergency requirements, and overall safety, a generator of 100kw or greater with an automatic transfer switch must be sited and installed at the proposed new building and approved by a Planning Board appointed expert and paid for by the Applicant. The permanent generator placement at the building must be noted on the final Site Plan.
12. The Applicant is responsible for modification (if necessary) and final approval of the fire pond and dry hydrant access as required by the Town of Richmond Fire Chief.
13. The Applicant is responsible for showing on the plans and construction of a fire way access around the proposed new building as recommended by the State Fire Marshall and with final approval of the Town of Richmond Fire Chief.
14. The Applicant must install a fire alarm system approved by Town of Richmond Fire Chief to include automatic communication with Mutual Aid.
15. The Chapel seating is to be fixed to the floor to preclude seating that exceeds fire code capacity, or in the alternative the Applicant must install a sprinkler system as required by the Town of Richmond Fire Chief.
16. The Applicant must show (on the Site Plans) all sidewalks for egress according to the recommendations of the Town of Richmond Fire Chief.
17. The Applicant must maintain at all times the appropriate egress from the proposed new building according to recommendations of the Town of Richmond Fire Chief.
18. Placement of a code compliant firewall between assembly area and school as per the recommendations of the State Fire Marshall and the Town of Richmond Fire Chief.
Water and Septic and Soil
19. The Applicant must apply for and obtain all applicable DES approvals and supply copies to the Planning Board and to the Board of Selectmen.
20. The Applicant must provide proof that 2 sealed wells, one next to St. Joseph's House and the other next to the fire pond (ID# 1985010/Map 412/Lot20) are correctly done according to DES standards. (12) The New water supply to existing buildings must be delineated on Plan sheet C3.0.
21. The Applicant must obtain and provide to the Planning Board DES groundwater discharge permit and DES approval of public wells on the site. (12)
22. The Applicant must obtain a complete water analysis performed according to DES standards on all three remaining wells (Boscarino property--Map 412/Lot19 to be merged, and the remaining two wells on the present St. Benedict property---Map 412/Lot20). The water analysis is to be completed within two months of conditional approval and copies of the reports filed with the Board of Selectmen and the Planning Board.
23. The Applicant must be in compliance with the Town of Richmond ZBA special exception approval granted the Applicant for "jacking" under delineated wetlands on the St. Benedict Center site plan (ZBA Approval of April 11, 2007). (12)
24. The Applicant must obtain federal and state approvals, including DES approval, for disturbing more than one acre prior to construction and provide copies of such approvals to the Planning Board.
25. The Applicant must accomplish the discontinuance and appropriate removal of the existing leach field presently located on property Map 412 Lot 20 as indicated on Plan sheet SS1.0 on new plan. Discontinuance and removal of this leach field shall take effect when the new system supplying the approved site and installed on the former Boscarino property (Map 412 Lot 19) now part of the St. Benedict Center site plan of merged lots comes on line. (12)
Lot Size
26. The Site Plan Application and review was predicated on the lot merger proposed by the Applicant (Map 412-Lot 18/Fall, Map-Lot 19/Boscarino, Map 412-Lot 20/St. Benedict Center). The lot merger must be executed and signed by the Applicant before any recording at the Registry of Deeds as part of the Site Plan approval.
Plats, Plans, and Building Permits
27. The Applicant shall prepare and submit to the Planning Board for its approval Plats, inclusive of any changes required by the Planning Board, suitable for recording at the Registry of Deeds.
28. The footprint, siting, and landscaping shall remain the same as on the Plats and all construction shall meet applicable state and local codes.
29. Construction drawing for Fay Martin Road will be approved by the Applicant and approved by the Board of Selectmen. Drawings shall conform to item#IX of the Fay Martin Road Layout Report" (Supplied by the Board of Selectmen) and include items necessary to improve existing road from bridge over Tully Brook up to utility pole #13 (PSNH436/9) just past the former Steve Boscarino driveway. The road shall meet or exceed specifications for 50-200 cars per day from Appendix 4 of the Subdivision Regulations as amended through March 4, 1998.
30. Conditions must exist at all times during construction on Fay Martin Road and Bridge for safe traversing by motor vehicles.
Active and Substantial Development
Commencement of active and substantial development shall be deemed to have occurred when the foundation for the proposed building is poured, and is approved by the Town.
NOTE: (A) Any condition containing (12) means it must be completed within 12 months after the conditional approval date and before recording with the Registry of Deeds. (B) Any condition containing (Post ROD) means the condition may be implemented after recording with the Registry of Deeds. (C) Any condition containing (2YRS.) means that condition must be completed within 2 years.
Date May 14, 2007
On May 9, 2007 the Town of Richmond Planning Board voted five votes in favor and one opposed to APPROVE WITH CONDITIONS, the Saint Benedict Center, Inc., ("Applicant") Site Plan Application dated October 3, 2006, together with Plan Sheets S1.0, C2.0-2.2, C3.0-3.2, C4.o, C5.0, C6.0, C7.0, C8.0, SS1.0, SS2.0, SS3.0, A1-1, A3-1, A3-2, LA-1, LA-2, LA-3 (all incorporated by reference herein as "Site Plan") and accepted by the Planning Board on December 5, 2006. The conditions of such Site Plan approval are as follows:
Necessity of the Conditions
If the following conditions are not met in their entirety, the Site Plan is considered scattered and premature and is not approved.
Zoning
1. Applicant must obtain from the ZBA a special exception for a house of worship in a residential zone as well as a determination as to whether or not a school is an allowed accessory use to this house of worship. If a school is not an allowed accessory use to an approved house of worship, the applicant must get a variance from the ZBA. (12)
Fay Martin Road and Bridge
2. Construction may only be started on the new building after completion of bridge, improvements to Fay Martin Road, and recording of the lot mergers, all stated herein. (Post ROD) (2YRS.)
3. The Applicant is responsible for upgrading of Fay Martin Road to extend from the east end of the bridge over Tully Brook on the entrance to Fay Martin Road to the utility pole #13 (PSNH436/9) near the driveway of the former Steve Boscarino property (Map 412 Lot 19).
4. The bridge over Tully Brook must be replaced with a two-lane bridge, minimum 50 ton capacity.
5. Posting of a bond or irrevocable letter of credit for improvements to the bridge on Fay Martin Road, the Fay Martin Road (from the bridge to the former Steve Boscarino property, Map 412 Lot 19), and the "fire pond access road" from Fay Martin Road to the dry hydrant at the approved fire pond must be done prior to recording at the Registry of Deeds, or the roads and bridge improvements are completed before recording. (12)
6. The bridge on Fay Martin Road must be constructed as well as the specified improvements done to the Fay Martin Road and to the "fire pond access road"> Construction of the road and bridge shall comply with the "Fay Martin Road Layout Report" items 7-10 as supplied by the Board of Selectmen. (Post ROD) (2 YRS.) Construction of the road and bridge shall comply with the "Fay Martin Layout Report" items7-10 as supplied by the Board of Selectmen.
7. Because of the safety concerns related to the Fay Martin Road Bridge, the replacement of the bridge must be completed prior to the commencement of any road and site construction. After completion of the bridge and road improvements to the Fay Martin Road including 2.5 inch binder layer of paving and improvements to the "fire pond access road," all other construction proposed in the submitted plats may be started. (2YRS.) The 1.5 inch top coat of paving is to be installed within 9 months of completion of heavy construction and prior to issuance of assembly/occupancy permit of the new building. The Applicant is responsible for the repair of any damage to the road related to the construction of the site.
8. The Applicant must upgrade and maintain the fire lane access road year round from Fay Martin Road to the dry hydrant at the fire pond with the specification standards of 50-200 from Appendix 4 of the Subdivision Regulations.
9. The Applicant must bear full financial responsibility for the specified upgrading of the Fay Martin Road, the "fire pond access road," including engineering costs required by the PB, as well as any easement expenses associated with road improvements and bridge construction. The Applicant will be responsible for 50% of the cost of the proposed new two lane bridge and associated bridge engineering costs.
Safety
10. The Applicant is responsible for compliance with all local and state fire safety codes as approved by State Fire Marshall and Town of Richmond Fire Chief.
11. Because of septic system pumping needs, emergency requirements, and overall safety, a generator of 100kw or greater with an automatic transfer switch must be sited and installed at the proposed new building and approved by a Planning Board appointed expert and paid for by the Applicant. The permanent generator placement at the building must be noted on the final Site Plan.
12. The Applicant is responsible for modification (if necessary) and final approval of the fire pond and dry hydrant access as required by the Town of Richmond Fire Chief.
13. The Applicant is responsible for showing on the plans and construction of a fire way access around the proposed new building as recommended by the State Fire Marshall and with final approval of the Town of Richmond Fire Chief.
14. The Applicant must install a fire alarm system approved by Town of Richmond Fire Chief to include automatic communication with Mutual Aid.
15. The Chapel seating is to be fixed to the floor to preclude seating that exceeds fire code capacity, or in the alternative the Applicant must install a sprinkler system as required by the Town of Richmond Fire Chief.
16. The Applicant must show (on the Site Plans) all sidewalks for egress according to the recommendations of the Town of Richmond Fire Chief.
17. The Applicant must maintain at all times the appropriate egress from the proposed new building according to recommendations of the Town of Richmond Fire Chief.
18. Placement of a code compliant firewall between assembly area and school as per the recommendations of the State Fire Marshall and the Town of Richmond Fire Chief.
Water and Septic and Soil
19. The Applicant must apply for and obtain all applicable DES approvals and supply copies to the Planning Board and to the Board of Selectmen.
20. The Applicant must provide proof that 2 sealed wells, one next to St. Joseph's House and the other next to the fire pond (ID# 1985010/Map 412/Lot20) are correctly done according to DES standards. (12) The New water supply to existing buildings must be delineated on Plan sheet C3.0.
21. The Applicant must obtain and provide to the Planning Board DES groundwater discharge permit and DES approval of public wells on the site. (12)
22. The Applicant must obtain a complete water analysis performed according to DES standards on all three remaining wells (Boscarino property--Map 412/Lot19 to be merged, and the remaining two wells on the present St. Benedict property---Map 412/Lot20). The water analysis is to be completed within two months of conditional approval and copies of the reports filed with the Board of Selectmen and the Planning Board.
23. The Applicant must be in compliance with the Town of Richmond ZBA special exception approval granted the Applicant for "jacking" under delineated wetlands on the St. Benedict Center site plan (ZBA Approval of April 11, 2007). (12)
24. The Applicant must obtain federal and state approvals, including DES approval, for disturbing more than one acre prior to construction and provide copies of such approvals to the Planning Board.
25. The Applicant must accomplish the discontinuance and appropriate removal of the existing leach field presently located on property Map 412 Lot 20 as indicated on Plan sheet SS1.0 on new plan. Discontinuance and removal of this leach field shall take effect when the new system supplying the approved site and installed on the former Boscarino property (Map 412 Lot 19) now part of the St. Benedict Center site plan of merged lots comes on line. (12)
Lot Size
26. The Site Plan Application and review was predicated on the lot merger proposed by the Applicant (Map 412-Lot 18/Fall, Map-Lot 19/Boscarino, Map 412-Lot 20/St. Benedict Center). The lot merger must be executed and signed by the Applicant before any recording at the Registry of Deeds as part of the Site Plan approval.
Plats, Plans, and Building Permits
27. The Applicant shall prepare and submit to the Planning Board for its approval Plats, inclusive of any changes required by the Planning Board, suitable for recording at the Registry of Deeds.
28. The footprint, siting, and landscaping shall remain the same as on the Plats and all construction shall meet applicable state and local codes.
29. Construction drawing for Fay Martin Road will be approved by the Applicant and approved by the Board of Selectmen. Drawings shall conform to item#IX of the Fay Martin Road Layout Report" (Supplied by the Board of Selectmen) and include items necessary to improve existing road from bridge over Tully Brook up to utility pole #13 (PSNH436/9) just past the former Steve Boscarino driveway. The road shall meet or exceed specifications for 50-200 cars per day from Appendix 4 of the Subdivision Regulations as amended through March 4, 1998.
30. Conditions must exist at all times during construction on Fay Martin Road and Bridge for safe traversing by motor vehicles.
Active and Substantial Development
Commencement of active and substantial development shall be deemed to have occurred when the foundation for the proposed building is poured, and is approved by the Town.
NOTE: (A) Any condition containing (12) means it must be completed within 12 months after the conditional approval date and before recording with the Registry of Deeds. (B) Any condition containing (Post ROD) means the condition may be implemented after recording with the Registry of Deeds. (C) Any condition containing (2YRS.) means that condition must be completed within 2 years.
Date May 14, 2007
Sunday, October 11, 2009
SBC V Town of Richmond-Updated Dates
In papers filed with the New Hampshire Superior Court, Cheshire County, dated 1 October 2009
SBC Attorney Michael Tierney, with assent from the Town of Richmond Attorney Daniel J. Mullen and Intervenors Attorney John Bisson, has requested the following:
a. Grant the Motion and schedule trial on this matter for the first two weeks of February 2010*
b. Hold a Status Conference** for this case on October 21, 2009 (which is currently scheduled to be a Pretrial Conference)
c. Schedule a Pretrial Conference for the week of December 14, 2009
d. Order that pretrial motions be submitted to the Court at least fourteen (14) days prior to the final Pretrial Conference; and
e. Such other and further relief as may be just and equitable
*Trial Judge will be the Hon. Philip P. Mangones
** The Pretrial Conference will be held as a Status Conference. The Status Conference will most likely be held in Chambers and NOT in open Court
SUPPORT THE RICHMOND 12
SBC Attorney Michael Tierney, with assent from the Town of Richmond Attorney Daniel J. Mullen and Intervenors Attorney John Bisson, has requested the following:
a. Grant the Motion and schedule trial on this matter for the first two weeks of February 2010*
b. Hold a Status Conference** for this case on October 21, 2009 (which is currently scheduled to be a Pretrial Conference)
c. Schedule a Pretrial Conference for the week of December 14, 2009
d. Order that pretrial motions be submitted to the Court at least fourteen (14) days prior to the final Pretrial Conference; and
e. Such other and further relief as may be just and equitable
*Trial Judge will be the Hon. Philip P. Mangones
** The Pretrial Conference will be held as a Status Conference. The Status Conference will most likely be held in Chambers and NOT in open Court
SUPPORT THE RICHMOND 12
Saturday, October 10, 2009
SBCWATCH Changes
SBCWATCH will now be devoted to just covering the pending cases of the SBC versus the Town of Richmond and the Richmond 12. Past posts that did not have any bearing to these suits have been eliminated. Moderated comments will be allowed on a trial basis.
Tuesday, September 22, 2009
SBC v Town of Richmond and Richmond 12-update
Monday-Sept 21
A final pretrial was scheduled for today, but no one showed up. There are several motions for summary judgement, so there was an agreement that the case was not ready for trial, and the attorneys decided they didn't need to attend a pretrial conference.
As of now, the trial is scheduled for November, but it may be postponed again, depending which judge is in Cheshire County in November. Both sides would really like one judge to decide all outstanding motions and sit for the trial.
Stay tuned for more information when it becomes available.
SUPPORT THE RICHMOND 12
A final pretrial was scheduled for today, but no one showed up. There are several motions for summary judgement, so there was an agreement that the case was not ready for trial, and the attorneys decided they didn't need to attend a pretrial conference.
As of now, the trial is scheduled for November, but it may be postponed again, depending which judge is in Cheshire County in November. Both sides would really like one judge to decide all outstanding motions and sit for the trial.
Stay tuned for more information when it becomes available.
SUPPORT THE RICHMOND 12
Monday, August 24, 2009
"Continued Rancor in the Small Town Of Richmond"
"A court suit involving land use will soon go to trial. Town officials say they are following the law, but opponents* claim religious discrimination."
Keene Sentinel-Monday, August 24, 2009 or on-line www.sentinelsource.com
* Saint Benedict Center (SBC)
Support the Richmond 12
Keene Sentinel-Monday, August 24, 2009 or on-line www.sentinelsource.com
* Saint Benedict Center (SBC)
Support the Richmond 12
Thursday, August 13, 2009
STOLEN SIGN-UPDATE
The latest stolen "We Support The Richmond 12" sign has been found. It was ripped in two and discarded further up the road. This now make a total of 5 signs that have been stolen in the town of Richmond in the last two months.
SUPPORT THE RICHMOND 12
SUPPORT THE RICHMOND 12
Tuesday, August 11, 2009
Another Sign Is Stolen Today
A "We Support The Richmond 12" sign was stolen from the front yard of a resident on Whipple Hill Road in Richmond NH. The theft happened between 1100 Am and 1PM today. As in the case of the other stolen signs, I am offering a $1000 reward for information leading to the arrest and conviction of the person or persons who stole this sign.
SUPPORT THE RICHMOND 12
SUPPORT THE RICHMOND 12
Monday, July 27, 2009
Court Case-Saint Benedict Center's Due Process Rights Have Not Been Violated
" To the extent that SBC is making procedural due process argument, then procedures set forth in the Town of Richmond Zoning and Planning Ordinances provide an adequate procedure. The ordinances and regulations follow state statute and provide notice to abutters and a property owner hearing and ability to have any decision which is issued appealed to the Court system. A substansive due process challenge to an ordiance questions the fundamental fairness of an ordiance "both generally and in relationship of the particular ordiance to particular property under particular conditions at the time of the litigation." The ordianances and regulations in this case promote public health, safety and general welfare. Accordingly, they survive any facial attack. Additionally, based on the facts on the record of this case, the ordinance is not arbitrary or unreasonable as applied.
Here, the actions of the Planning Board in imposing conditions based upon the health, safety and welfare of citizens in the Town of Richmond were not arbitrary or unreasonable. All of the condtions had a reasonable basis for constitutional purposes based upon health and safety and welfare concerns. As a result, there is no violation of SBC's due process rights."
Motion for Summary Judgement filed July 16, 2009
SUPPORT THE RICHMOND 12
Here, the actions of the Planning Board in imposing conditions based upon the health, safety and welfare of citizens in the Town of Richmond were not arbitrary or unreasonable. All of the condtions had a reasonable basis for constitutional purposes based upon health and safety and welfare concerns. As a result, there is no violation of SBC's due process rights."
Motion for Summary Judgement filed July 16, 2009
SUPPORT THE RICHMOND 12
Sunday, July 26, 2009
Court Case-Saint Benedict Center's Claims against Town of Richmond ZBA Fail on Basis of Ripeness
'Any claim that the Town of Richmond Zoning Ordinances related to special permits and variances violates RLUIPA or the United States Constitution fails because the issues are not ripe for decision at this time. Here, SBC was informed by the Richmond ZBA that it needed to have a special permit to operate a school in a residential district. SBC has not even applied for either one of these. Accordingly, an application has never been denied. Therefore, SBC does not raise a legal issue which the Court can decide in the abstract without further factual developments. Because SBC has not followed the process for obtaining either a special exception or a variance for the house of worship and the school, this case is not yet ripe for judicial action. It is entirely speculative at this time whether such an application would be granted or denied. If it is granted, there would be no issue. Accordingly, the RLUIPA cause of action and the constitutional action against the Town of Richmond ZBA are not ripe for adjudication and judgement should be granted to the Town of Richmond on this basis."
Motion for Summary Judgement filed July 16,2009
SUPPORT THE RICHMOND 12
Motion for Summary Judgement filed July 16,2009
SUPPORT THE RICHMOND 12
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