Hamilton cites RLUIPA in responding to ‘mercenary’ question

Marci Hamilton, a professor at the Cardozo Law School at Yeshiva University in New York and nationally renowned Religious Land Use and Institutionalized Persons Act (RLUIPA) expert,
Marci Hamilton, a professor at the Cardozo Law School at Yeshiva University in New York and nationally renowned Religious Land Use and Institutionalized Persons Act (RLUIPA) expert, addresses the public last week in City Hall.

NORWALK, Conn. – Conjecture is rampant and suspicions are high when it comes to the motivations of the lawyers who negotiated a settlement between Norwalk and the Al Madany Islamic Center. Marci Hamilton said Sunday that it’s all about the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Hamilton’s comment framing the proposed settlement as “remarkable” is disregarded by some as self-interest and it is said that she described Norwalk’s case as remarkably winnable – so why did she throw in the towel?

On Sunday, NancyOnNorwalk sent Hamilton an email and asked her to respond to two reader comments. Hamilton graciously complied:

Commenter: “Lawyers are mercenaries who argue whatever side their client pays them to argue.”

Hamilton: “My obligation under the code of professional responsibility is to give the best legal advice for my client, whether it is welcome or not.  If RLUIPA were not in the picture, I would have a very different perspective.  Norwalk chose to participate in settlement negotiations to see if they could find a middle ground, in light of RLUIPA.  The settlement is not bad for a situation where RLUIPA imposes the potential that the local government would have to pay the other sides’ attorneys’ fees.  That cost could be borne solely by taxpayers….

“As to being a so-called ‘mercenary,’ no one is working harder to get RLUIPA held unconstitutional, which would end all of my consultation  in land use cases, and if the settlement goes through, neither I nor Joseph Williams will be needed for any further legal advice.  Our position and my advice is based on principle, not politics.”

Commenter: “I heard Dave McCarthy state that Ms. Hamilton told him that Al Madany failed to present any evidence of discrimination, and that the case was one of the most winnable she had ever seen.”

Hamilton: “It has been my opinion from the beginning, along with the majority of the residents there on Thursday night, that the project is too big for such a small lot, and, therefore, the case has been winnable.  But there are no guarantees in RLUIPA cases, because it places a heavy weight on the side of the scale for the religious developer and against the government, so there is always some risk of losing.  The settlement does foreclose the possibility of steep attorneys’ fees for the other side if Norwalk were not to prevail.   Not an easy choice for local lawmakers, as the close vote showed. …

“Finally, my greatest hope is to have an opportunity to litigate RLUIPA’s constitutionality for a city, because as we saw on Thursday, it puts local governments between a rock (unfair federal law) and a hard place (reasonable land use expectations of homeowners and citizens).  But for the federal government’s imposition of RLUIPA on local land use decisions, the City could be making a simple and straightforward land use decision and the religious developer would be required to abide by simple land use rules.  If the settlement were not to go through, I would hope that the City would return to pursuing the constitutional arguments aggressively.

One more question for good measure, this time from NoN.

Question: There’s a feeling among some Norwalk residents that the state of Norwalk’s zoning regulations is to blame for this. Do you have any perspective on that?

Hamilton: “I don’t see how under any Code or land use principle, the application would have been permitted on this small of a lot in a residential neighborhood.”


11 responses to “Hamilton cites RLUIPA in responding to ‘mercenary’ question”

  1. John Hamlin

    What about the zoning regs? She ignores what controls.

  2. It’s just laws.

    It looks like even Ms Hamilton is shocked by Norwalk’s broken zoning code, one of the worst in the state, which allowed the mosque at the original size and parking requirement which followed the code exactly. Under decades of Republican rule, and with the help of current city staff, Norwalk gutted its regulations because of the philosophy of property rights, where regulation is bad and property owners rights to build whatever they want at any size takes precedence. This included eliminating FAR (floor area ratio) limits in residence zones , which is the traditional method municipalities use (and which Norwalk once had) to limit size and bulk of buildings. Norwalk is unique in not having any FAR limits in residential zones, which is how Rowayton got transformed from a New England fishing village into an overbuilt collection of huge trophy houses crowding out the light, air, and water views of entire historic neighborhoods.
    How ironic that Dave McCarthy lives in one of these overbuilt multi-million dollar behemoths in Rowayton that dwarfs it’s neighbors, allowed under a relaxed zoning code that is the very reason the mosque he is foaming at the mouth over was allowed at the size and bulk it was. It would be interesting to hear Ms Hamilton’s opinion after she is reminded of the fact that our code allowed the mosque at that original size, a fact she obviously was unaware of when asked these questions in the article.

  3. PNolin

    JH you keep talking about a problem with the Zoning Regs but you never say what they are. This application is not for a regular permitted use in the AAA Zone. But like most towns Norwalk allows some uses in the residential zones by Special Permit. Here houses of worship, museums, schools and certain other uses are allowed in AAA residence zone (See Reg Sec. 118.310.B.(2) (a)-(l) provided they meet the criteria of a Special Permit 118-1450. C(1)(a)-(m). This project was turned down for failure to meet many of these criteria which include not meeting the requirement for stable traffic flow, the density and use and bulk of buildings, lack of adequacy of yards and opens pace, “impact on neighborhood properties”, and lack of harmony with existing uses. The application also was turned down on the lack of adequate on site parking under other Regs. Ask any zoning commissioner this application would have been turned down if it was school or museum use. The only reason there was doubt was because AL Madany was claiming religious discrimination. In the end this settlement has only been approved now to give special treatment to religious institution. the Zoning Regs in this regard worked fine.

  4. Dennis DiManis

    Rilling should have asked her to fight for Norwalk pro bono, like the Muslim’s lawyers are supposedly doing.

  5. It’s just laws.

    PNolin, you are ignoring the fact that the mosque followed all the zoning codes for size, bulk, and parking as if it was any as of right use, except for the minaret, or as more than one speaker said at the hearing revealing their level of intelligence, the “minuet” ( as if the mosque were proposing short waltzes for this site).
    The Special Permit is a subjective level of scrutiny that in Norwalk’s case, is poorly written and does not clearly define its conditions, as described in the published lawsuit. It defies logic to say a structure doesn’t fit into its surroundings when it is directly across from huge condos housing hundreds of people that dwarf it in size and bulk, and it follows all the city’s own standards for lot coverage, size, and density. The fact that Norwalk allowed the 2,400 family St. Matthews to expand numerous times into a 1,079 seat megachurch with over 300 parking spaces without ever needing a traffic study or other scrutiny, in a winding road with similar traffic loads as Fillow, just across the park from the Mosque site is evidence enough that the mosque was treated differently than other religious institutions in AAA residence zones. The commission also unanimously approved a 15,000 square foot community center at St George’s on West Rocks without much fuss at all, also in a AAA zone. How did that fit into its surroundings? This idea that the lot is too small for the mosque while our codes allowed it at that size on that lot, which is why they night the property in the first place, is the issue here. It’s our existing code that has no FAR minimums for residence zones to limit size and bulk like most other cities do around the country, a legacy of decades of conservative property rights advocates like yourself dismantling our regulations, that is the reason we find ourselves here. Norwalk Republicans have been hoisted on their own petard, and they refuse so far to admit it. But that is what this is all about, and that is why they are trying to deflect the attention with fear tactics and a mob mentality that is only providing more evidence every day to the mosque to prove discrimination has occurred, not that they need it after McCarthy and Wilson’s RTC flyer they distributed in 2012 and which is now evidence in the case against the city.

  6. Tim D

    @Its Just laws – the difference between you and those that have spoken against the mosque is that you, and similar commentators, continue to insult the other side. Why? I haven’t read anything offensive or demeaning other than a group of people who have the right to protest, and do so without inflammatory comments, without insults and within their god given right. Just like you have the right to practice your religion under our great constitution, It’s called America. Tone it down.

  7. Suzanne

    People here are so hysterical about Zoning Regulations and not one has mentioned Ms. Hamilton’s discomfort with RLUIPA. It is interesting to me that she finds the law so distasteful yet would be out of work if she weren’t negotiating settlements on behalf of the RLUIPA statute for municipalities across the country.
    The fact is, the Zoning Commission DENIED the application to Al-Madany until they invoked this directive at a Federal level. Our Zoning Commission was “burdening” them from practicing their faith. Hogwash. If Al-Madany had purchased the amount of land they really needed at a safer location in the first place, I doubt all of the brouhaha would have ensued.
    It is RLUIPA that is ultimately considered here: I am not sure where Ms. Hamilton’s criteria comes off. If she negotiates the terms under the statute, it will turn out better? Is this how she sleeps at night?
    This is not to say our Zoning Regs are not broken. They clearly are. But, Mrs. Hamilton directly addresses RLUIPA as the limiting factor for zoning in communities.
    As to the unending data put forth by UNEnvoy, now some other moniker, each of the entities cited purchased the proper amount of land to not be an incursion in the neighborhood nor cause traffic problems. Al-Madany did not do that. With all of this fighting, just when do they think, in their righteous indignation, they will actually get to build that mosque in that location?
    I still vote for a land swap (not that that matters. I am only a taxpayer and constituent, after all.)

  8. Aga Khan

    @suzanne you are saying that the land is too small and that the amount of traffic it will generate is too much traffic. If someone showed me a regulation that the mosque was violating I would be the first one to agree . But at the end of the day all it is is your personal opinion.
    It’s one thing to invoke RLUIPA to get a variance. But the mosque in this instance is invoking it to ensure that it is treated the same as other houses of worship in the area.
    According to the city the road is not unsafe; if it is then people should not be driving on it today. Does that part of the neighborhood become denser with the mosque vs a single family home. Undoubtedly, but the mosque should not be held responsible for the city’s poor planning.

  9. John Hamlin

    “The mosque should not be held responsible for the city’s poor planning” — hard to argue with that. Maybe it’s time to reform the zoning — perhaps after developing a viable city plan. Too bad our elected and appointed officials didn’t ‘think about that a few years ago.

  10. Suzanne

    Ridiculous. As was made clear in an earlier thread, why are they remediating traffic signs and stop signs and warning signs at all if the road is not dangerous, especially with the addition of this mosque.
    You did not read what I said: the mosque was initially DENIED by Zoning. THEN they invoked RULIPA precisely because Al-Madany did not purchase the amount of land they needed to fit into the residential neighborhood. Period.
    Other houses of worship in the area, must this be repeated endlessly, DID purchase enough land to accommodate their facilities AND the surrounding neighborhood. Al-Madany did not – instead they relied on the “burden of worship” of RULIPA thereby creating a discrimination against the community because they did not plan accordingly.
    Yes, the Zoning Commission, Regulations, Laws, what have you need to be reformed – a known notion for many years with as many excuses to go along with not doing it. What allowed Al-Madany their mosque, though, was ultimately RULIPA and not the local Zoning Code.
    Land swap, land swap, land swap. An idea that was not explored during the last negotiations and should seriously be considered. Al-Madany has opportunities within the community to have the land they need, the safe exit they want and still be within the City of Norwalk, presumably where those 100 families live.
    Why are they going through this process at all when there is an option? Running to a lawyer at the first rejection is not an honorable strategy. Working with the Town instead of lawyers for the best solution would have been so much better.

  11. LWitherspoon

    @Nancy and Mark
    Thank you for posing my concerns to Ms. Hamilton. Your reporting on the mosque controversy has been the most comprehensive anywhere. You have worked hard to elevate the discussion.
    Unfortunately I don’t feel Ms. Hamilton fully addressed my concerns. She repeats her earlier statement that the case is winnable, yet she feels the best course is to settle because we might lose. That advice is based on what calculus? Surely there is more to it than “we might lose”. How about discussing the best evidence Al Madany can present, how Norwalk could defend it, and the City’s likelihood of prevailing? Has Ms. Hamilton examined Norwalk’s ability to afford the cost of fighting the settlement and losing?

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