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.”