12‐1057(L) Chabad Lubavitch of Litchfield v. Litchfield Historic District Commission

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2013 5 6 (Argued: September 16, 2013 Decided: September 19, 2014) 7 8 Nos. 12‐1057‐cv (Lead), 12‐1495‐cv (Con) 9 _____________________________________ 10 11 CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., JOSEPH EISENBACH,

12 Plaintiffs‐Appellants–Cross‐Appellees, 13 14 UNITED STATES OF AMERICA,

15 Plaintiff, 16 17 ‐ v. ‐ 18 19 LITCHFIELD HISTORIC DISTRICT COMMISSION, BOROUGH OF LITCHFIELD, 20 CONNECTICUT, GLENN HILLMAN, KATHLEEN CRAWFORD,

21 Defendants‐Appellees–Cross‐Appellants, 22 23 TOWN OF LITCHFIELD, CONNECTICUT, DOE, POLICE DOG, WENDY KUHNE,

24 Defendants.*

25 _____________________________________ 26 27 Before: WALKER, LIVINGSTON, and CHIN, Circuit Judges. 28

* The Clerk of Court is directed to amend the caption as set forth above. 1 Chabad Lubavitch of Litchfield County, Inc. (“Chabad”) appeals from the 2 February 21, 2012 judgment of the United States District Court for the District of 3 Connecticut (Hall, C.J.) denying its motion for partial summary judgment and 4 granting the defendants’ motion for summary judgment on each of the Chabad’s 5 claims, brought pursuant to

, 1985, and 1986; the Religious Land 6 Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.; and 7 Connecticut state law, and stemming from the denial of the Chabad’s application to 8 alter its property, located in the Borough of Litchfield’s historic district. Because we 9 conclude that the district court applied erroneous legal standards to the Chabad’s 10 claims under RLUIPA’s substantial burden and nondiscrimination provisions, we 11 VACATE the grant of summary judgment in the defendants’ favor on these claims 12 and REMAND them for further consideration consistent with this opinion. By 13 contrast, we AFFIRM the grant of summary judgment in the defendants’ favor on 14 the remainder of the Chabad’s claims, largely due to the Chabad’s failure adequately 15 to brief these claims. 16 17 Rabbi Joseph Eisenbach (“Rabbi Eisenbach”) appeals from the June 20, 2011 18 order of the district court dismissing his claims, coextensive with the Chabad’s, for 19 lack of standing. Because we conclude that the district court erred in finding that 20 Rabbi Eisenbach lacked standing under RLUIPA, we VACATE the dismissal of his 21 claims on that ground and REMAND for consideration whether he nonetheless 22 failed to state a claim. However, we AFFIRM the dismissal of Rabbi Eisenbach’s 23 remaining claims for failure adequately to brief these claims. 24 25 Accordingly, the February 21, 2012 judgment is VACATED AND 26 REMANDED IN PART and AFFIRMED IN PART, and the June 20, 2011 order is 27 VACATED AND REMANDED IN PART and AFFIRMED IN PART. 28 29 FREDERICK H. NELSON (Kenneth R. Slater, Jr., 30 Halloran & Sage, LLP, Hartford, CT, on the brief), 31 American Liberties Institute, Orlando, FL, for 32 Plaintiffs‐Appellants–Cross‐Appellees. 33 34 C. SCOTT SCHWEFEL, Shipman, Shaiken & Schwefel 35 LLC, West Hartford, CT, for Defendants‐

2 1 Appellees–Cross‐Appellants Litchfield Historic 2 Commission and Borough of Litchfield, Connecticut. 3 4 JAMES STEDRONSKY, Stedronsky & D’Andrea, LLC, 5 Litchfield, CT, for Defendants‐Appellees–Cross‐ 6 Appellants Glenn Hillman and Kathleen Crawford. 7 8 April J. Anderson, Jessica Dunsay Silver, U.S. 9 Department of Justice, Civil Rights Division, 10 Washington, DC, for Amicus Curiae United States of 11 America. 12 13 Kevin T. Snider, Pacific Justice Institute, 14 Sacramento, CA, for Amicus Curiae Pacific Justice 15 Institute. 16 17 DEBRA ANN LIVINGSTON, Circuit Judge:

18 The Chabad Lubavitch of Litchfield County, Inc. (“Chabad”), a Connecticut

19 membership corporation founded and currently presided over by Rabbi Joseph

20 Eisenbach (“Rabbi Eisenbach”), purchased property in the Borough of Litchfield’s

21 Historic District with the intention of expanding the existing building on the

22 property to accommodate the Chabad’s religious mission. Pursuant to Connecticut

23 state law, the Chabad applied to the Borough of Litchfield’s Historic District

24 Commission (“HDC”) for leave to undertake its desired modifications. However,

25 following multiple meetings on and amendments to the Chabad’s proposal, the

26 HDC denied the application with leave to submit an amended proposal consistent

3 1 with enumerated conditions. In this ensuing suit, the Chabad and Rabbi Eisenbach

2 (collectively, the “plaintiffs”) assert that the Borough of Litchfield, the HDC, and

3 HDC members Glenn Hillman (“Hillman”) and Kathleen Crawford (“Crawford”)

4 (collectively, the “defendants”) abridged their rights under

, 1985,

5 and 1986; the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42

6 U.S.C. § 2000cc et seq.; and Connecticut state law by denying the application.1 They

7 seek damages, injunctive and declaratory relief, attorneys’ fees, and the appointment

8 of a federal monitor.

9 On the defendants’ motion to dismiss for lack of subject matter jurisdiction,

10 the district court (Hall, C.J.) dismissed Rabbi Eisenbach’s claims for lack of standing,

11 citing the Rabbi’s want of a sufficient property interest under RLUIPA and his

12 failure to distinguish his claims from the Chabad’s under federal and state law.

13 Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield,

,

14 338‐39 (D. Conn. 2011) [hereinafter Chabad I]. Subsequently, following the Chabad’s

1 The Chabad and Rabbi Eisenbach did not name the Town of Litchfield, Connecticut as a defendant in the Second Amended Complaint, following the Town’s motion to dismiss the claims against it. Further, the plaintiffs dropped their claims against certain Doe defendants in the Third Amended Complaint. On appeal, a panel of this Court also dismissed plaintiffs’ appeal as to the claims against HDC member Wendy Kuhne as a defendant, on Kuhne’s motion. See U.S.C.A. No. 12‐1057, doc. 182. Finally, while the United States intervened as a plaintiff below, it did so only to defend the constitutionality of RLUIPA, an issue not raised on appeal. Therefore, the United States appears here only as amicus curiae.

4 1 motion for partial summary judgment and the defendants’ motion for summary

2 judgment, the district court ruled in favor of the defendants. Significantly, the

3 district court concluded that Connecticut’s statutory scheme governing historic

4 districts is “neutral and generally applicable” and, consequently, that the HDC’s

5 denial of the Chabad’s application could not “as a matter of law” impose a

6 substantial burden on the Chabad’s religious exercise under RLUIPA’s substantial

7 burden provision. Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield, 853

(D. Conn. 2012) [hereinafter Chabad II]. The district court also

9 held that the Chabad’s failure to identify a religious institution that was more

10 favorably treated than and “identical in all relevant respects” to the Chabad barred

11 the Chabad’s claim under RLUIPA’s nondiscrimination provision. Chabad II,

Supp. 2d at 229‐31.

13 On appeal, we conclude that the district court erred in dismissing Rabbi

14 Eisenbach’s RLUIPA claims for lack of standing. Accordingly, we vacate the district

15 court’s June 20, 2011 ruling insofar as it concerns Rabbi Eisenbach’s standing under

16 RLUIPA and remand for consideration, instead, whether Rabbi Eisenbach failed to

17 state a claim under RLUIPA. We affirm the remainder of that judgment due to

18 Rabbi Eisenbach’s failure to brief his remaining claims. Additionally, we conclude

5 1 that the HDC’s review of the Chabad’s application was an “individual assessment”

2 subject to RLUIPA’s substantial burden provision and that the Chabad need not cite

3 an “identical” comparator to establish a claim under RLUIPA’s nondiscriminaton

4 provision. Accordingly, we vacate the district court’s February 21, 2012 judgment

5 insofar as it concerned these RLUIPA claims and remand for consideration whether

6 these claims survive summary judgment under an analysis consistent with this

7 opinion. We affirm the remainder of the district court’s February 21, 2012 judgment,

8 albeit largely due to the Chabad’s failure to brief most of its remaining claims.

9 BACKGROUND

10 A. Facts2

11 The Chabad, a Connecticut membership corporation, and Rabbi Eisenbach,

12 president of the Chabad, offer weekly religious and other services to its Orthodox

13 Hasidic parishioners in the Litchfield area. Prior to the events at issue, the Chabad

14 rented space to provide these services, at a cost of thousands of dollars per year.

15 Deeming the rented space inadequate to practice its faith and accommodate its

16 religious mission, the Chabad in 2005 purchased a property at 85 West Street in the

2 In review of the district court’s grant of summary judgment to the defendants, we view the facts in the light most favorable to the Chabad. Ne. Research, LLC v. One Shipwrecked Vessel,

(2d Cir. 2013).

6 1 Borough of Litchfield to serve as its new place of worship. The property, located in

2 the Litchfield Historic District – once deemed to be “[p]robably the finest surviving

3 example of a typical late 18th century New England town” – boasts a two‐story,

4 “stick‐style” Victorian residence constructed in the 1870s encompassing 2,600 square

5 feet and a basement. Known as the “Deming House,” the building was constructed

6 as a residence by the grandson of a prominent Revolutionary War‐era Litchfield

7 resident but, by the time of the Chabad’s purchase, had been altered to

8 accommodate a commercial establishment.

9 In accordance with Connecticut’s statutory scheme governing development

10 in historic districts, the Chabad sought leave to alter 85 West Street to meet its needs.

11 Specifically, Connecticut General Statutes § 7‐147d(a) directs that “[n]o building or

12 structure shall be erected or altered within an historic district until after an

13 application for a certificate of appropriateness as to exterior architectural features

14 has been submitted to the historic district commission and approved by said

15 commission.”3 The HDC, established in 1989 pursuant to this scheme, reviews such

16 applications for the Litchfield Historic District. The Connecticut General Statutes

3 “Nonprofit institutions of higher education” are exempted from this requirement. Conn. Gen. Stat. § 7‐147k(b).

7 1 empower the HDC to approve or deny applications following notice and a public

2 hearing, see id. §§ 7‐147c, 7‐147e, and direct that, when weighing applications to alter

3 exterior architectural features, the HDC consider, “in addition to any other pertinent

4 factors, the historical and architectural value and significance, architectural style,

5 scale, general design, arrangement, texture and material of the architectural features

6 involved and the relationship thereof to the exterior architectural style and pertinent

7 features of other buildings and structures in the immediate neighborhood,” id. §

8 7‐147f(a).

9 The HDC first considered the Chabad’s application at a pre‐hearing meeting

10 on September 6, 2007. The defendants assert that the Chabad’s proposed

11 modifications called for a 17,000‐square‐foot addition to be built at 85 West Street,

12 including administrative offices, classrooms, a nearly 5,000‐square‐foot residence for

13 Rabbi Eisenbach and his family, an indoor swimming pool, guest accommodations,

14 kitchens, and a ritual bath. Though the Chabad disputes the defendants’

15 characterization of its proposed expansion, it does not specify a smaller footprint.

16 In addition, the Chabad sought to top the property with a clock tower featuring the

17 Star of David and to incorporate several external elements that would restore some

18 of the property’s period details. The Chabad contends that, at that meeting, HDC

8 1 member Wendy Kuhne (“Kuhne”) voiced her opposition to its application, due in

2 part to the size of the addition and her belief that the Star of David was not

3 “historically compatible with the [Historic] District.” Other HDC members,

4 including Crawford, also expressed concerns regarding the size of the addition, with

5 one member urging that “[w]e have to get the public out on this project for the

6 public hearing.” At the conclusion of the meeting, the HDC scheduled a second

7 pre‐hearing meeting for the following month.

8 At the second meeting, held on October 18, 2007, the Chabad announced its

9 changes in response to the requested modifications, which included altering the

10 shape of windows and lowering the roof line of the addition. Following the

11 Chabad’s presentation, Kuhne commented, “[I]s this all there is?” J.A. 747. Though

12 the Chabad did not object to Kuhne’s comments at the meeting, it later requested

13 that she recuse herself from the public meetings and decisionmaking process, which

14 she did. The HDC then bifurcated the hearing process concerning the Chabad’s

15 application, reserving the first hearing to address the Chabad’s proposed

16 modifications and the second to address whether denial of the Chabad’s application

17 would place a “substantial burden” on its religious exercise. Following the first

18 public hearing, held on November 15, 2007, the Chabad altered its proposal to,

9 1 among other changes, lower the foundation of its addition, use alternative exterior

2 building material, reduce the height of the Star of David finial atop the clock tower,

3 and reconstruct a front porch that had been removed during an earlier renovation.

4 At the second hearing, held on December 17, 2007, the Chabad asserted its need for

5 a larger structure, but did not disclose the size of its assembly or the number of

6 students likely to attend religious classes.

7 The HDC denied the Chabad’s application on December 20, 2007. In its

8 written opinion, the HDC catalogued the history and importance of the Deming

9 House to the historic character of the Borough of Litchfield. Per the HDC, the

10 altered but nonetheless distinctively residential structure serves as one of the “last

11 vestiges” of the Borough’s residential district, “significant alteration” of which

12 would destroy the “residential character” of the property’s environs. As such, the

13 HDC “commended” the Chabad’s proposals to rehabilitate the existing structure,

14 but nevertheless denied three of the Chabad’s proposed modifications: hanging a

15 double door on the front of the house, incorporating a clock tower, and building an

16 addition on the property. The HDC concluded that the double door would conflict

17 with the house’s original design and would require removal of a single door that

18 was “probably the original door of the house.” J.A. 330. The HDC deemed the clock

10 1 tower “incongruous with the immediate neighborhood and the district as a whole,”

2 and found that it would “in one stroke transform[] the house from a residential

3 structure in appearance to an institutional structure.” Id. Finally, the HDC objected

4 to the size of the proposed addition, which it characterized as “massive” and “nearly

5 20,000 square f[ee]t,” a size “over five times as large as” the Deming House that

6 would “dwarf[] and overwhelm[]” not only the house but also the neighborhood as

7 a whole. J.A. 328, 331.

8 However, in light of the Chabad’s proposed religious use of the property, the

9 HDC also granted accommodations to substitute for the rejected modifications.

10 Specifically, the HDC stated that it would accept a proposal replacing the clear glass

11 currently in the house’s front door with stained glass, incorporating a finial with a

12 Star of David atop the house, and including an addition that was no larger than the

13 original structure. The HDC granted the Chabad leave to file an amended

14 application consistent with these conditions. Thereafter, five HDC members voted

15 unanimously to deny the Chabad a certificate of appropriateness, including

16 Hillman. Crawford was not recorded as having cast a vote. The Chabad did not

17 administratively appeal the denial or file an amended application. See Conn. Gen.

18 Stat. § 7‐147i.

11 1 B. Procedural History

2 The Chabad and Rabbi Eisenbach filed the underlying action in September

3 2009. In their Third Amended Complaint, filed on April 26, 2010, the plaintiffs

4 asserted that the HDC’s denial of the Chabad’s application abridged their rights

5 under the First Amendment’s Free Exercise, Free Speech, and Free Association

6 Clauses; the Fourteenth Amendment’s Equal Protection and Due Process Clauses;

7 RLUIPA’s substantial burden, equal terms, and nondiscrimination provisions; as

8 well as provisions of the Connecticut state constitution and the Connecticut

9 Religious Freedom Act (“CFRA”), Conn. Gen. Stat. § 52‐571b. The plaintiffs also

10 asserted that the named HDC members conspired to violate and failed to prevent

11 the violation of their civil rights under

and 1986, respectively.

12 In January 2011, the defendants moved to dismiss Rabbi Eisenbach’s claims

13 for lack of standing under Federal Rule of Civil Procedure 12(b)(1).4 The district

14 court granted this motion on June 20, 2011. The district court first concluded that

15 “RLUIPA requires a plaintiff to hold some property interest that he has attempted

16 to use and which has been threatened by the illegal conduct of the defendant.”

4 In that same motion, the defendants sought judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which the district court denied. See Chabad I,

. The defendants do not contest this ruling.

12 1 Chabad I,

(citing 42 U.S.C. § 2000cc‐5(5)). Because Rabbi

2 Eisenbach’s proposed use of the facilities at 85 West Street “[did] not qualify” as

3 such a property interest and his claim of “a right to place a mortgage lien” on the

4 property for unpaid salary “barely warrant[ed] addressing,” the district court

5 determined the Rabbi lacked standing to press his claims under RLUIPA. Id. at 338‐

6 39. In addition, the district court concluded that Rabbi Eisenbach’s failure to

7 distinguish his claims from those of the Chabad denied him standing under 42

, 1985, and 1986, the Connecticut constitution, and CFRA.

.

9 The Chabad subsequently moved for partial summary judgment on May 14,

10 2011, and on May 16, 2011, the defendants cross‐moved for summary judgment.5

11 In February 2012, the district court denied the Chabad’s motion and granted the

12 defendants’. Pertinently, the district court found that, because Connecticut General

13 Statutes § 7‐147a et seq. applies to any entity seeking to alter modify a property in a

14 historic district (save for nonprofit institutions of higher education) it is a neutral

15 law of general applicability and thus could not, as a matter of law, impose a

16 substantial burden on the Chabad’s religious exercise, thereby barring the Chabad’s

5 Rabbi Eisenbach joined the Chabad’s motion, but due to the dismissal of his claims for lack of subject matter jurisdiction, his involvement is not considered here.

13 1 claim under RLUIPA’s substantial burden provision. Chabad II, 853 F. Supp. 2d at

2 224‐25. In addition, the district court concluded that the Chabad’s failure to cite a

3 valid secular comparator was fatal to its claim under RLUIPA’s equal terms

4 provision, id. at 226‐29, and that its failure to identify a religious institution that was

5 more favorably treated and identically situated to the Chabad precluded its claim

6 under RLUIPA’s nondiscrimination provision, id. at 229‐31. Finally, the district

7 court rejected the Chabad’s remaining constitutional and state law claims for many

8 of the same reasons described above. Id. at 231‐37. Because the district court

9 granted summary judgment to the defendants on the merits, it did not address the

10 HDC members’ asserted entitlement to either absolute or qualified immunity. Id.

11 at 237. The Chabad and Rabbi Eisenbach appealed both of the district court’s

12 rulings, and the defendants cross‐appealed.

13

14 DISCUSSION

15 We review de novo a district court’s grant of a motion to dismiss for lack of

16 standing. Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd.,

(2d

17 Cir. 2013). As with any motion to dismiss, we “accept[] all well‐pleaded allegations

18 in the complaint as true [and] draw[] all reasonable inferences in the plaintiff’s

14 1 favor.” Bigio v. Coca‐Cola Co.,

(2d Cir. 2012) (internal quotation

2 marks omitted) (second alteration in original). “To survive a motion to dismiss, the

3 complaint must plead ‘enough facts to state a claim to relief that is plausible on its

4 face.’” Fed. Treasury Enter. Sojuzplodoimport,

(quoting Bell Atl. Corp. v.

5 Twombly,

(2007)). A claim is facially plausible when the complaint

6 contains “‘factual content that allows the court to draw the reasonable inference that

7 the defendant is liable for the misconduct alleged.’”

(quoting Ashcroft v. Iqbal, 556

, 678 (2009)).

9 We also review de novo a district court’s grant of summary judgment, again

10 drawing all factual inferences in favor of the non‐moving party. See Miller v. Wolpoff

11 & Abramson, L.L.P.,

(2d Cir. 2003). Summary judgment is

12 appropriate when there is “no genuine dispute as to any material fact” and the

13 moving party is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

14 There is no “genuine” dispute when “the record taken as a whole could not lead a

15 rational trier of fact to find for the non‐moving party.” Matsushita Elec. Indus. Co. v.

16 Zenith Radio Corp.,

(1986).

17 A. The Chabad’s RLUIPA Claims

18 The Chabad asserts claims under three of RLUIPA’s land use provisions: the

15 1 substantial burden provision, which prohibits substantial government interference

2 with a land use applicant’s religious exercise in the absence of a compelling

3 justification, 42 U.S.C. § 2000cc(a)(1); and the equal terms and nondiscrimination

4 provisions, which prohibit unequal treatment of and discrimination against religious

5 assemblies and institutions by a government, id. § 2000cc(b)(1)‐(2). We address each

6 in turn.

7 1. The Chabad’s RLUIPA Substantial Burden Claim

8 RLUIPA’s substantial burden provision provides:

9 No government shall impose or implement a land use regulation in a 10 manner that imposes a substantial burden on the religious exercise of 11 a person, including a religious assembly or institution, unless the 12 government demonstrates that imposition of the burden on that 13 person, assembly, or institution – (A) is in furtherance of a compelling 14 governmental interest; and (B) is the least restrictive means of 15 furthering that compelling governmental interest. 16 17 42 U.S.C. § 2000cc(a)(1). The provision applies only when a substantial burden

18 (1) occurs attendant to a federally funded program; (2) implicates interstate or

19 international commerce or commerce with Indian tribes; or (3) “is imposed in the

20 implementation of a land use regulation or system of land use regulations, under

21 which a government makes, or has in place formal or informal procedures or

22 practices that permit the government to make, individualized assessments of the

16 1 proposed uses for the property involved.” Id. § 2000cc(a)(2). To establish a claim,

2 a plaintiff bears the burden of demonstrating that at least one of these predicates

3 applies and that the defendant’s implementation of a “land use regulation” placed

4 a “substantial burden” on the plaintiff’s “religious exercise.” 42 U.S.C. § 2000cc‐2(b).

5 The burden then shifts to the defendant to demonstrate that it “acted in furtherance

6 of a compelling governmental interest and that its action is the least restrictive

7 means of furthering that interest.” Id. at 353 (citing 42 U.S.C. § 2000cc‐2(b)).

8 We agree with the Chabad that RLUIPA’s substantial burden provision

9 applies in this case under the statute’s “individualized assessment” predicate.6

10 Under the “plain meaning” of 42 U.S.C. § 2000cc(a)(2)(C), this predicate is satisfied

11 when “the government may take into account the particular details of an applicant’s

12 proposed use of land when deciding to permit or deny that use.” Guru Nanak Sikh

13 Soc’y v. Cnty. of Sutter,

(9th Cir. 2006). Thus, while the mere

14 application of a neutral and generally applicable zoning law likely would not trigger

6 Although the Chabad’s proposed construction of a 17,000‐square‐foot addition at 85 West Street almost certainly renders RLUIPA applicable under the interstate commerce predicate, see Westchester Day Sch. v. Vill. of Mamaroneck,

(2d Cir. 2007) (noting that denial of application to modify property satisfied RLUIPA’s interstate commerce predicate because “commercial building construction is activity affecting interstate commerce” (citing Reich v. Mashantucket Sand & Gravel,

(2d Cir. 1996))), the district court did not address this predicate and we decline to do so in the first instance.

17 1 RLUIPA (at least, not under this predicate), application of a zoning law that permits

2 a governmental entity to consider the applicant’s intended use of a property,

3 applying at least partly subjective criteria on a case‐by‐case basis, likely would. See

4 id. at 987; see also Westchester Day Sch. v. Vill. of Mamaroneck,

, 542

5 (S.D.N.Y. 2006) (noting that application of neutral and generally applicable law “to

6 particular facts” may constitute individualized assessment where such “application

7 does not involve a mere numerical or mechanistic assessment,” but instead

8 “involv[es] criteria that are at least partially subjective in nature”), aff’d,

(2d Cir. 2007).

10 RLUIPA’s substantial burden provision combats “subtle forms of

11 discrimination” by land use authorities that may occur when “a state delegates

12 essentially standardless discretion to nonprofessionals operating without procedural

13 safeguards.” Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New

14 Berlin,

(7th Cir. 2005). Accordingly, when a governmental entity

15 conducts a “case‐by‐case evaluation” of a land use application, carrying as it does

16 “the concomitant risk of idiosyncratic application” of land use standards that may

17 permit (and conceal) “potentially discriminatory” denials, RLUIPA applies. Midrash

18 Sephardi, Inc. v. Town of Surfside,

(11th Cir. 2004) (holding that

18 1 ordinance permitting such evaluations was “quintessentially an ‘individual

2 assessment’ regime” under RLUIPA); see also Dep’t of Justice Policy Statement on the

3 Land‐Use Provisions of RLUIPA at 6 (Sept. 22, 2010) [hereinafter “DOJ Statement”],

4 available at http://www.justice.gov/crt/rluipa_q_a_9‐22‐10.pdf (noting that, due to

5 idiosyncracies of zoning law, “solely . . . mechanical, objective” assessments exempt

6 from this predicate would be “extremely rare”).

7 The broad reach of this predicate is no accident. In regulating individualized

8 assessments by government of the proposed uses to which property is to be put, the

9 substantial burden provision codifies principles announced in Sherbert v. Verner, 374

(1963), insofar as that case held that a “[government] system for granting

11 individual exemptions from a general rule must have a compelling reason to deny

12 a religious group an exemption that is sought on the basis of hardship.” Sts.

13 Constantine & Helen Greek Orthodox Church, Inc.,

(discussing

14 individualized assessment predicate). Because “almost all” land use regimes

15 implicate such “individualized” review, see River of Life Kingdom Ministries v. Vill. of

16 Hazel Crest,

(7th Cir. 2010) (en banc) (Sykes, J., dissenting), almost

17 all “impos[itions]” or “implementation[s]” of land use regimes, 42 U.S.C.

18 § 2000cc(a)(2)(C), will satisfy this predicate.

19 1 Under this rubric, Connecticut’s statutory scheme undeniably demands an

2 individual assessment of applications to alter historic properties. While Connecticut

3 General Statutes § 7‐147d(a) requires that nearly all entities seeking to modify a

4 property in a historic district “shall” obtain a certificate of appropriateness, the

5 scheme also requires that local commissions implement that general rule by

6 applying loosely defined and subjective standards to discrete applications. See id.

7 §§ 7‐147c, 7‐147e, 7‐147f. To that end, § 7‐147e commands that commissions “hold

8 a public hearing upon each application.” Id. § 7‐147e(a) (emphasis added). Similarly,

9 § 7‐147f directs that commissions, when weighing an application, must determine

10 whether “the proposed erection, alteration or parking will be appropriate.” Id.

11 § 7‐147f(a) (emphasis added). And, in assessing the appropriateness of a

12 modification, commissions are further directed to consider such criteria as “the

13 historical and architectural value and significance” of the modification, its

14 “architectural style, scale, general design, arrangement, texture and material” used,

15 “the relationship [of . . . ] the exterior architectural style” to the neighborhood – and

16 “any other pertinent factors.” Id. Even the district court found these standards to

17 be “subjective in nature,” but nonetheless deemed the statutory scheme to be

18 immune from substantial burden analysis. See Chabad II, 853 F. Supp. 2d at 235. In

20 1 the absence of more definite standards limiting the HDC’s discretion in reviewing

2 applications, we disagree. See DOJ Statement at 6.7

3 Were there any doubt as to the type of assessment at issue, even a cursory

4 review of the HDC’s consideration of the Chabad’s application confirms that the

5 process was patently individualized. The HDC probed the Chabad’s proposed

6 window and roof measurements, door selections, building materials, roof

7 adornments, and glass type, and imposed a size limitation on the Chabad’s

8 development based on a tailored review of surrounding properties. Moreover, the

9 HDC conducted this inquiry without the guidance of laws or regulations that

10 dictated the specific metes and bounds either of its inquiry or of the conditions it

11 imposed. Regardless of whether the HDC’s inquiry was defensible, it was thus at

7 Connecticut General Statutes § 7‐147f(b) does bar consideration of the so‐called “interior arrangement or use” of a property, a limitation which may be typical of many historic preservation laws. However, this limitation is of no moment to our consideration of the scheme under RLUIPA. While the “individualized assessment” predicate reaches only review of the “proposed uses” for a property, 42 U.S.C. § 2000cc(a)(2)(C), RLUIPA contemplates “land use” as broadly encompassing the “use or development of land,” 42 U.S.C. § 2000cc‐5(5) (defining “land use regulation” as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land)”). The “development of land” is explicitly regulated by the scheme instated pursuant to Connecticut General Statutes § 7‐147a et seq. See also Roman Catholic Bishop of Springfield v. City of Springfield,

(1st Cir. 2013) (concluding that RLUIPA substantial burden provision applied to creation of historic preservation district that limited church’s ability to alter exterior of its property).

21 1 a minimum individualized. Because Connecticut’s statutory scheme therefore permits

2 – indeed, demands – application of subjective standards to individual land use

3 applications, and because the HDC applied such subjective standards to the

4 Chabad’s application, we conclude that the HDC’s denial of the Chabad’s

5 application resulted from an “individual assessment,” triggering RLUIPA’s

6 substantial burden provision.8 The district court consequently erred in determining

7 that the Chabad could not establish a claim under RLUIPA’s substantial burden

8 provision “as a matter of law,” and we vacate the district court’s judgment insofar

9 as it concerns that claim.

10 In reaching its decision, the district court improperly read our opinion in

11 Westchester Day School as holding that, as a matter of law, generally applicable land

12 use regulations may only result in a substantial burden when arbitrarily and

13 capriciously imposed. See Chabad II, 853 F. Supp. 2d at 225 (citing Westchester Day

14 Sch.,

). This holding would be in tension with the plain language of

15 RLUIPA’s substantial burden provision, which in certain instances regulates

16 “burden[s that] result[] from a rule of general applicability” – suggesting that such 8 The defendants effectively concede this point. In one affidavit submitted by the HDC, Rachel Carley, an architectural historian, notes that “[e]ach property [under review] is unique, and each proposal for change introduces a different set of circumstances. For this reason, proposals are always considered case by case.” J.A. 317.

22 1 burdens fall within RLUIPA’s cognizance, even when imposed in the regular course.

2 42 U.S.C. § 2000cc(a)(2)(A), (B). Moreover, such a rule would render the substantial

3 burden provision largely superfluous given RLUIPA’s nondiscrimination and equal

4 terms provisions, which regulate overtly discriminatory acts that are often

5 characterized by arbitrary or unequal treatment of religious institutions. See id.

6 § 2000cc(b)(1)‐(2); Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706

, 557 (4th Cir. 2013) (“Requiring a religious institution to show that it has

8 been targeted on the basis of religion in order to succeed on a substantial burden

9 claim would render the nondiscrimination provision superfluous.”); Sts. Constantine

10 & Helen Greek Orthodox Church, Inc.,

(“[T]he ‘substantial burden’

11 provision backstops the explicit prohibition of religious discrimination in the later

12 section of [RLUIPA], much as the disparate‐impact theory of employment

13 discrimination backstops the prohibition of intentional discrimination. If a land‐use

14 decision . . . imposes a substantial burden on religious exercise . . . and the decision

15 maker cannot justify it, the inference arises that hostility to religion . . . influenced

16 the decision.” (citations omitted)).

17 Instead, Westchester Day School enumerates some of the factors that may be

18 considered to determine whether a substantial burden is imposed, including

23 1 whether the law is neutral and generally applicable. In conducting the substantial

2 burden analysis, we considered several factors. See

(stating that the

3 “arbitrary and unlawful nature” of defendant’s conduct “support[ed]” a substantial

4 burden claim, while also looking to “other factors”); see also Fortress Bible Church, 694

5 F.3d at 219 (finding that arbitrary and capricious application of land use regulation

6 “bolstered” a substantial burden claim). In addition to the arbitrariness of a denial,

7 our multifaceted analysis considered whether the denial was conditional; if so,

8 whether the condition was itself a substantial burden; and whether the plaintiff had

9 ready alternatives. See Westchester Day Sch.,

; see also Fortress Bible

10 Church, 694 F.3d at 219 (considering whether rejection of land use application denied

11 plaintiff the “ability to construct an adequate facility” for its religious exercise, or

12 was merely a “rejection of a specific building proposal”). Our sister circuits have

13 contributed additional texture to this analysis. See, e.g., Bethel World Outreach

14 Ministries, 706 F.3d at 558 (weighing whether plaintiff had “reasonable expectation”

15 of receiving approval to build church when it bought property and deeming it

16 “significant that the [defendant] has completely prevented [the plaintiff] from

17 building any church on its property”); Petra Presbyterian Church v. Vill. of Northbrook,

18

(7th Cir. 2007) (considering as a factor whether plaintiff “bought

24 1 property reasonably expecting to obtain a permit,” particularly when alternative

2 sites were available); Midrash Sephardi, Inc.,

(deeming it significant

3 that the plaintiff could operate a church “only a few blocks from” its preferred

4 location). Thus, while we conclude that the substantial burden provision applies,

5 we leave it to the district court to determine as a question of first instance, see

6 Dardana Ltd. v. Yuganskneftegaz,

(2d Cir. 2003), whether the denial

7 here in fact “impose[d] a substantial burden on the [Chabad’s] religious exercise,”9

8 42 U.S.C. § 2000cc(a)(1); see Fortress Bible Church v. Feiner,

(2d Cir.

9 2012) (requiring that the substantial burden have a “close nexus” with religious

10 exercise to be cognizable under RLUIPA); Westchester Day Sch.,

11 (holding that substantial burden occurs when government “coerces the religious

12 institution to change its behavior” (emphasis omitted)) . We note that, in conducting

13 the substantial burden analysis on remand, the district court should consider, inter

14 alia, whether the conditions attendant to the HDC’s denial of the Chabad’s

15 application themselves imposed a substantial burden on the Chabad’s religious

16 exercise, whether feasible alternatives existed for the Chabad to exercise its faith, 9 The parties do not dispute (and it is indisputable) that Connecticut General Statutes § 7‐147a et seq. constitutes a “land use regulation” under RLUIPA, defined as “a zoning or landmarking law, or application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land).” 42 U.S.C. § 2000cc‐5(5).

25 1 and whether the Chabad reasonably believed it would be permitted to undertake its

2 proposed modifications when it purchased the property at 85 West Street. The

3 district court should also consider, of course, whether the proposed modifications

4 shared a “close nexus” with and would be consistent with accommodating the

5 Chabad’s religious exercise. See Fortress Bible Church,

.

6 2. The Chabad’s RLUIPA Equal Terms Claim

7 We can address the Chabad’s equal terms claim in comparatively short order.

8 RLUIPA’s equal terms provision states that “[n]o government shall impose or

9 implement a land use regulation in a manner that treats a religious assembly or

10 institution on less than equal terms with a nonreligious assembly or institution.” 42

11 U.S.C. § 2000cc(b)(1). Under this provision, the plaintiff bears the initial burden to

12 “produce[] prima facie evidence to support a claim” of unequal treatment, after

13 which the “government . . . bear[s] the burden of persuasion on any element of the

14 claim.” Id. § 2000cc‐2(b).

15 Division exists among our sister circuits concerning whether the equal terms

16 provision invariably requires evidence of a “similarly situated” secular comparator

17 to establish a claim and, where such evidence is necessary, on what ground the

18 comparison must be made. See generally River of Life Kingdom Ministries,

1 368‐71 (en banc majority opinion) (discussing circuits’ conflicting approaches);

2 at 377‐78 (Sykes, J., dissenting) (same discussion). We need not enter the fray here,

3 as the Chabad has failed to present sufficient evidence to establish a prima facie

4 equal terms claim under any standard.

5 In this Court’s sole analysis of the equal terms provision, we declined to

6 define “the precise outlines of what it takes to be a valid comparator under

7 RLUIPA’s equal‐terms provision.” Third Church of Christ, Scientist v. City of New

F.3d 667, 669 (2d Cir. 2010). Nevertheless, we noted that “organizations

9 subject to different land‐use regimes may well not be sufficiently similar to support

10 a discriminatory‐enforcement challenge.”

(emphasis omitted). In support,

11 we cited Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, in

12 which the Eleventh Circuit held that a church and school were insufficiently

13 comparable to establish an equal terms claim, given that the properties sought

14 different forms of zoning relief from different land use authorities applying “sharply

15 different” criteria. See

(11th Cir. 2006). Because the evidence of

16 the church’s and school’s treatment was thus “consistent with the . . . neutral

17 application of different zoning regulations” – suggesting “different treatment, not

18 unequal treatment” – the court held that the plaintiff had failed to establish a prima

27 1 facie equal terms claim.

; see also Vision Church v. Vill. of Long Grove, 468

(7th Cir. 2006) (rejecting equal terms claim, in part, because “the fact

3 that [the religious land use applicant] and the elementary schools were subject to

4 different standards because of the year in which their special use applications were

5 considered compels the conclusion that there was no unequal treatment”).

6 The same is true here; the Chabad has failed to establish a prima facie equal

7 terms claim. Its sole support for its equal terms claim comes in the form of one

8 alleged comparator: the Wolcott Library, a building in Litchfield’s Historic District

9 that, according to uncontested evidence submitted by the Chabad, was permitted

10 to construct a “substantial” addition on its property that altered the character of the

11 property from residential to institutional.10 However, the Wolcott Library’s

10 The Chabad argues that two other properties in Litchfield’s Historic District, the Rose Haven Home and the Cramer and Anderson building, should also serve as comparators because additions on those properties were “substantially larger” than the original structures. However, the Chabad’s only support for this argument comes from an affidavit submitted by one of its attorneys that cited “research” the attorney performed for the Chabad’s application to the HDC. The attorney did not provide any analysis or basis for her conclusion, nor did the Chabad. Because the affidavit failed to show that these contentions could be established at trial by competent evidence, it cannot create a triable issue of fact. See ABB Indus. Sys., Inc. v. Prime Tech., Inc.,

(2d Cir. 1997) (citing Fed. R. Civ. P. 56(e)); see also Jeffreys v. City of New York,

(2d Cir. 2005) (noting that, to defeat summary judgment, “a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful” (internal quotation marks omitted)); Bickerstaff v. Vassar Coll.,

(2d Cir. 1999) (“Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a

28 1 expansion was approved in 1965 by a different land use authority pursuant to a

2 different land use regime. Specifically, the Board of Warden and Burgesses, the

3 predecessor to the HDC, approved construction of the addition under a law that

4 explicitly barred consideration of “the relative size of buildings.” J.A. 192. By

5 contrast, Connecticut General Statutes § 7‐147f(a), which guided the HDC’s

6 consideration of the Chabad’s application, explicitly requires that commissions

7 “shall” consider “scale.”

8 While minor differences in land use regimes may not defeat a comparison

9 under the equal terms provision in all disputes, the centrality of the size of the

10 Chabad’s proposed addition to this dispute renders the Wolcott Library an

11 inappropriate comparator to support the Chabad’s equal terms claim. As such, the

12 Chabad has (at most) established “different treatment, not unequal treatment.”

13 Primera Iglesia Bautista Hispana,

. Because the Chabad has thus failed

14 to identify any evidence that it endured “less than equal” treatment as compared to

15 a secular assembly or institution, we affirm the district court’s grant of summary

properly supported motion for summary judgment.”). Because the affidavit was so lacking, we agree with the district court that it provided insufficient ground to require further consideration of these comparators at summary judgment.

29 1 judgment to the defendants on this claim.11

2 3. The Chabad’s RLUIPA Nondiscrimination Claim

3 RLUIPA’s nondiscrimination provision states that “[n]o government shall

4 impose or implement a land use regulation that discriminates against any assembly

5 or institution on the basis of religion or religious denomination.” 42 U.S.C.

6 § 2000cc(b)(2). As with the equal terms provision, the plaintiff bears the initial

7 burden of establishing a prima facie claim, after which the government bears the

8 burden of persuasion on the elements of the nondiscrimination claim. Id. § 2000cc‐2

9 (b).

10 This Court has not previously interpreted the nondiscrimination provision.

11 Nonetheless, the plain text of the provision makes clear that, unlike the substantial

12 burden and equal terms provisions, evidence of discriminatory intent is required to

13 establish a claim. See 42 U.S.C. § 2000cc(b)(2) (prohibiting discrimination “on the

14 basis of religion or religious denomination” (emphasis added)). As such, courts

11 As indicated above, the Chabad did not argue and we do not address whether an equal terms claim may be based solely on an inference of unequal treatment from a law that is facially discriminatory or “‘gerrymandered’ to place a burden solely on religious, as opposed to nonreligious, assemblies or institutions.” See Primera Iglesia Bautista Hispana, 450 F.3d at 1308‐10. In any event, the scheme under Connecticut General Statutes § 7‐147a et seq. does not facially discriminate against religious assemblies or institutions, and there is no evidence in the record suggesting that it was enacted with the purpose of doing so.

30 1 consider the provision have held that the nondiscrimination provision “enshrine[s]”

2 principles announced in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

(1993), which cast a jaundiced eye on laws that target religion. See Midrash

4 Sephardi, Inc., 366 F.3d at 1231‐32.

5 Lukumi looked to equal protection principles in analyzing whether a law was

6 discriminatory. See Lukumi, 508 U.S. at 540 (citing Vill. of Arlington Heights v. Metro.

7 Hous. Dev. Corp.,

(1977)). Other courts analyzing RLUIPA’s

8 nondiscrimination provision, as well as the related equal terms provision, have

9 similarly looked to equal protection precedent in weighing such claims. See, e.g.,

10 Bethel World Outreach Ministries, 706 F.3d at 559; Church of Scientology of Ga., Inc. v.

11 City of Sandy Springs,

(N.D. Ga. 2012). We join in

12 employing this approach. RLUIPA, after all, codified “existing Free Exercise,

13 Establishment Clause[,] and Equal Protection rights against states and

14 municipalities” that discriminated against religious land use. Midrash Sephardi, Inc.,

15

(discussing the equal terms provision, but also noting that “RLUIPA

16 tailors the nondiscrimination prohibitions [in 42 U.S.C. § 2000cc(b)(1) and (2)] to

17 land use regulations because Congress identified a significant encroachment on the

18 core First and Fourteenth Amendment rights of religious observers”). Accordingly,

31 1 establishing a claim under RLUIPA’s nondiscrimination provision, as with the

2 Supreme Court’s equal protection precedent, requires evidence of “discriminatory

3 intent.” See Arlington Heights,

(“Proof of . . . discriminatory intent or

4 purpose is required to show a violation of the Equal Protection Clause.”).

5 This Court has generally recognized three types of equal protection violations:

6 (1) a facially discriminatory law; (2) a facially neutral statute that was adopted with

7 a discriminatory intent and applied with a discriminatory effect (i.e., a

8 “gerrymandered” law); and (3) a facially neutral law that is enforced in a

9 discriminatory manner. See, e.g., Hayden v. Cnty. of Nassau,

(2d Cir.

10 1999); see also Lukumi, 508 U.S. at 535 (“Apart from the text, the effect of a law in its

11 real operation is strong evidence of object.”). In determining whether a facially

12 neutral statute was selectively enforced, we look to both direct and circumstantial

13 evidence of discriminatory intent, as instructed by the Supreme Court in Arlington

14 Heights. See Southside Fair Hous. Comm. v. City of New York,

, 1354 (2d

15 Cir. 1991) (citing Arlington Heights,

); see also Bethel World Outreach

16 Ministries, 706 F.3d at 559 (citing Arlington Heights to support analysis of

17 circumstantial evidence in weighing nondiscrimination claim).

18

32 1 The Chabad asserts that HDC enforced Connecticut General Statutes

2 § 7‐147d(a) et seq. against it in a discriminatory manner; yet, in weighing the

3 Chabad’s claim, the district court looked solely to whether the Chabad had

4 identified comparator religious institutions that were “‘identical in all relevant

5 respects’” to the Chabad. Chabad II, 853 F. Supp. 2d at 231 (quoting Racine Charter

6 One, Inc. v. Racine Unified Sch. Dist.,

(7th Cir. 2005)). This was in

7 error. As in Arlington Heights, analysis of a claim brought under RLUIPA’s

8 nondiscrimination provision requires a “sensitive inquiry into such circumstantial

9 and direct evidence of intent as may be available.” Arlington Heights,

.

10 Accordingly, courts assessing discriminatory intent under RLUIPA’s

11 nondiscrimination provision have considered a multitude of factors, including the

12 series of events leading up to a land use decision, the context in which the decision

13 was made, whether the decision or decisionmaking process departed from

14 established norms, statements made by the decisionmaking body and community

15 members, reports issued by the decisionmaking body, whether a discriminatory

16 impact was foreseeable, and whether less discriminatory avenues were available.

17 See Bethel World Outreach Ministries, 706 F.3d at 559‐60; Church of Scientology of Ga.,

18 Inc., 843 F. Supp. 2d at 1370‐76.

33 1 Here, the district court bypassed consideration of circumstantial evidence that

2 might have supported the Chabad’s claim and instead considered only the Chabad’s

3 cited comparators. While such evidence is certainly germane to a selective

4 enforcement analysis, it is not necessary to establish a nondiscrimination claim.

5 Contrary to the equal terms provision, which turns on “less than equal” treatment

6 of religious as compared to nonreligious assemblies or institutions, the

7 nondiscrimination provision bars discrimination “on the basis of religion or

8 religious denomination,” a fact that may be proven without reference to a religious

9 analogue.12 42 U.S.C. § 2000cc(b)(1), (2). Moreover, while comparators must exhibit

10 some similarity to permit meaningful analysis, a requirement that they be

11 “identical” is unduly restrictive. See Third Church of Christ, Scientist, 626 F.3d at 670

12 (surveying various bases for comparison relied upon by circuits, none of which

13 require comparators to be “identical”). Indeed, such a requirement would exempt

14 many historic districts from RLUIPA’s reach, given the likelihood that newer faiths

12 While it is thus possible that a nondiscrimination plaintiff could establish a selective enforcement claim based on facially discriminatory conduct or arbitrary decisionmaking alone, it is difficult to imagine an equal terms plaintiff succeeding in an as‐applied challenge without evidence of a secular comparator that was more favorably treated.

34 1 would be absent.13

2 Because the district court did not look beyond religious comparators in

3 weighing the Chabad’s nondiscrimination claim, we vacate the grant of summary

4 judgment to the defendants on this claim and remand for consideration of whether

5 the Chabad established a prima facie nondiscrimination claim, cognizant of the fact

6 that such discrimination must be “on the basis of religion” and not other, legitimate

7 factors. See Bethel World Outreach Ministries, 706 F.3d at 559‐60 (affirming grant of

8 summary judgment for defendants on a nondiscrimination claim where evidence

9 showed that opposition to plaintiff’s proposed land use was due to size of the

10 proposed facility, and the plaintiff failed to present comparative evidence that could

11 demonstrate the concern with size was pretextual).14

12 B. The Chabad’s Remaining Claims

13 We conclude that the Chabad has waived appeal of its remaining claims due

13 We decline to address the exact parameters of the religious assemblies or institutions that may properly serve as comparators in this case, both because such delineation may prove unnecessary on remand if there are none, see Chabad II, 853 F. Supp. 2d at 231 (“[I]t does not appear that any of the houses of worship to which Chabad points have made any additions since the current HDC regime was implemented.”), and because we leave the selective enforcement inquiry to the district court to conduct in the first instance. 14 We decline to address the Chabad’s “class‐of‐one” equal protection argument in support of its nondiscrimination claim, which it raises for the first time on appeal. See O’Hara v. Weeks Marine, Inc.,

, 67 n.5 (2d Cir. 2002).

35 1 to insufficient briefing. See Norton v. Sam’s Club,

(2d Cir. 1998)

2 (“Issues not sufficiently argued in the briefs are considered waived and normally

3 will not be addressed on appeal.”). The Chabad’s brief devotes sections to each of

4 its federal Constitutional claims, but these sections simply recite the district court’s

5 ruling and are thus insufficient to preserve the Chabad’s appeal. The brief fails even

6 to mention the Chabad’s conspiracy and state law claims. Accordingly, we affirm

7 the district court’s grant of summary judgment to the defendants on these claims.

8 C. Rabbi Eisenbach’s Standing

9 Rabbi Eisenbach appeals from the district court’s dismissal of his claims for

10 lack of standing under federal and state law. The district court first determined that

11 Rabbi Eisenbach did not have standing under RLUIPA because he did not assert a

12 sufficient property interest in 85 West Street. Chabad I,

(citing

13 42 U.S.C. § 2000cc‐5(5), which requires a claimant to have “an ownership, leasehold,

14 easement, servitude, or other property interest in the regulated land or a contract or

15 option to acquire such an interest”). The court held that Rabbi Eisenbach’s use of the

16 proposed facilities and his speculative “right to place a mortgage lien” on the

17 property to recoup unpaid salary were not “property interest[s]” under RLUIPA.

18 Id. at 338. We disagree at least insofar as the district court analyzed Rabbi

36 1 Eisenbach’s property interest as a jurisdictional matter.

2 The Supreme Court has recently clarified the distinction between Article III

3 standing – which is a prerequisite to the invocation of federal court jurisdiction –

4 and what has been referred to as “statutory standing” – which has at times been

5 held to be jurisdictional and at others nonjurisdictional. See Lexmark Int’l, Inc. v.

6 Static Control Components, Inc.,

, 1386‐88 & n.4 (2014). Under Article

7 III’s “case” or “controversy” requirement, a party invoking federal court jurisdiction

8 must demonstrate that he has “suffered or [is] imminently threatened with a

9 concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged

10 action of the defendant and likely to be redressed by a favorable judicial decision.”

11

at 1386 (quoting Lujan v. Defenders of Wildlife,

(1992)). Where this

12 “‘irreducible constitutional minimum of standing’” is satisfied,

(quoting Lujan,

13

), “a federal court’s obligation to hear and decide cases within its

14 jurisdiction is virtually unflagging,”

(internal quotation marks omitted).

15 By contrast, determination whether a statute permits a plaintiff to pursue a

16 claim “is an issue that requires [courts] to determine . . . whether a legislatively

17 conferred cause of action encompasses a particular plaintiff’s claim.” Id. at 1387. As

18 opposed to whether the plaintiff may invoke a court’s jurisdiction, the question is

37 1 whether the plaintiff “has a cause of action under the statute.” Id. The

2 determination whether a statute grants a plaintiff a cause of action is “a

3 straightforward question of statutory interpretation,” operating under the

4 presumptions that the plaintiff must allege interests that “fall within the zone of

5 interests protected by the law invoked,” id. at 1388 (internal quotation marks

6 omitted), and injuries that were “proximately caused by [the alleged] violations of

7 the statute,” id. at 1390. As the Supreme Court has made clear, determination

8 whether a claim satisfies these requirements goes not to the court’s jurisdiction – that

9 is, “power” – to adjudicate a case, but instead to whether the plaintiff has adequately

10 pled a claim. Id. at 1387 n.4; see id. at 1389 n.5.

11 There can be little doubt that Rabbi Eisenbach has met the constitutional

12 requirements of Article III standing to assert his RLUIPA claim. At a minimum,

13 Rabbi Eisenbach alleged that he intended to live at the proposed facilities. The

14 HDC’s denial of the Chabad’s application, and the conditions it imposed on any

15 renewed application, thus deprived Rabbi Eisenbach of the ability to live in the

16 facilities as proposed, an injury that may be redressed by relief from the district

17 court.

18

38 1 Instead, the issue of Rabbi Eisenbach’s standing to pursue his RLUIPA claims

2 turns on whether his allegations place him in the class of plaintiffs that RLUIPA

3 protects – that is, whether he has stated a claim upon which relief can be granted.15

4 Accordingly, we vacate the district court’s holding that Rabbi Eisenbach lacked

5 standing under RLUIPA and remand for determination whether he has stated a

6 claim. In so doing, we note that, while Rabbi Eisenbach’s alleged “right” to impose

7 a lien is seemingly distinct from the other property interests cited in RLUIPA, the

8 allegation will nonetheless “warrant[] addressing” on remand. See Chabad I,

Supp. 2d at 339.

10 Finally, the district court dismissed Rabbi Eisenbach’s federal and Connecticut

11 constitutional claims, as well as his claim pursuant to the CFRA, on the ground that

12 they were derivative of the Chabad’s claims. In his brief, Rabbi Eisenbach merely

13 asserts – conclusorily and without record citations – that he “has independent

15 Prior to Lexmark International, at least two other circuit courts held that the existence of a property interest under RLUIPA goes to the plaintiff’s standing. See Covenant Christian Ministries, Inc. v. City of Marietta,

(11th Cir. 2011) (holding that pastor’s lack of a property interest denied him standing to pursue RLUIPA claim); DiLaura v. Ann Arbor Charter Twp.,

(6th Cir. 2002) (finding that memorandum of understanding to transfer property to plaintiff was a sufficient property interest under RLUIPA to confer standing); but cf. Taylor v. City of Gary,

(7th Cir. 2007) (“assum[ing]” that plaintiff who failed to plead a property interest had standing for RLUIPA, but dismissing the action for failure to state a claim). However, in light of Lexmark International, we cannot join these holdings.

39 1 constitutional claims” that are “clearly expressed in the [complaint].” Appellants’

2 Br. at 61‐62. The brief fails to cite a single Connecticut case to support his argument,

3 nor does it cite pertinent cases regarding federal law under

and

4 1986. As such, we deem his appeal of these claims to be waived and affirm their

5 dismissal. See Sam’s Club,

.

6 D. The Individual Defendants’ Immunity

7 Hillman and Crawford argue that they are entitled to absolute immunity

8 because they acted in a quasi‐judicial capacity as members of the HDC and, in the

9 alternative, are entitled to qualified immunity, as the Chabad’s right to a certificate

10 of appropriateness was not clearly established at the time of the denial. We leave

11 these issues to the district court to address in the first instance, in addition to

12 consideration whether Crawford is properly subject to this suit in the absence of

13 evidence that she voted on the application. See Dardana Ltd.,

.

14 CONCLUSION

15 For the foregoing reasons, we vacate the district court’s order dismissing

16 Rabbi Eisenbach’s RLUIPA claims for lack of standing and remand for further

17 proceedings as to these claims, but affirm the dismissal of the remainder of Rabbi

18 Eisenbach’s claims. We also vacate the district court’s judgment as to the Chabad’s

40 1 claims under RLUIPA’s substantial burden and nondiscrimination provisions, and

2 remand for further proceedings as to those claims, but affirm the dismissal of the

3 Chabad’s claim under RLUIPA’s equal terms provision, as well as its claims under

4 the federal and Connecticut constitutions and Connecticut state law. Thus, the June

5 20, 2011 order of the district court is VACATED IN PART AND AFFIRMED IN PART, the

6 February 21, 2012 judgment of the district court is VACATED IN PART AND AFFIRMED

7 IN PART, and the case is REMANDED for further proceedings.

41