NORWALK, Conn. – Presumably inside information about the Al Madany lawsuit against Norwalk has leaked out onto these pages, posted by someone calling themselves “The Aga Khan.”
The mysterious commenter debated former Zoning Commission Chairwoman Jackie Lightfield in posts left on Norwalk Republican Town Committee Chairman Pete Torrano’s letter to the editor, “Mayor should defend the city, not settle mosque suit.” Lightfield expressed the opinion that The Aga Khan had nailed it in an interpretation of the Religious Land Use and Institutional Prisoners Act (RLUIPA), under which the Al Madany Islamic Center has sued the city in federal court.
“Your description of the religious exemption law is spot on,” Lightfield wrote to Aga on July 11.
The conversation started with a July 9 post from NancyOnNorwalk editor Mark Chapman:
“(Zoning Commissioner and state representative candidate) Emily Wilson contacted me at about 6 p.m. Wednesday, July 9, to say she has ‘neither authored nor sponsored any settlement of a lawsuit brought against the City of Norwalk, and that I am precluded from saying more given court confidentiality.’
“It has been reported since 2012 that Wilson authored or participated in the authoring of the original non-binding settlement that was accepted by the Zoning Commission on a 6-1 vote but was never signed, as then-Mayor Richard Moccia dismissed the outside attorney and opted for the current lawyer, Marci A. Hamilton , described in an online bio as ‘one of the United States’ leading church/state scholars.’”
Enter The Aga Khan, calling into question the honesty of Wilson’s statement:
“While it is technically true that she did not author the resolution adopted by the zoning commission in 2012 (Norwalk’s outside counsel did) and she did not sponsor the resolution (Adam Blank did), she was much more involved than she lets on. Ms. Wilson was the Chair of the Commission in 2012, and in this capacity attended the mediation in Hartford held by the federal magistrate. She actively participated in the session and agreed to its outcome namely that the Commission would approve the mosque’s plan as presented and that the City would pay the mosque $100K to compensate them for the expense of filing a federal lawsuit. The resolution would not have been authored or presented to the Commission unless she had agreed to that form of resolution at the mediation session.”
The resolution was written to give the city’s lawyers room to negotiate a settlement, Aga Khan said.
“Neither the city’s attorneys nor the mosques want the zoning commission to take another vote. Rather they want the federal judge to issue a judgment ordering the City to issue the permit. This is called a consent order. It’s the same way the civil rights cases such as housing discrimination or school segregation are settled.”
A flyer put out by Wilson and Councilman David McCarthy (R-District E) last fall was brought into evidence in the case to support Al Madany’s claim of discrimination, Aga Khan said. The fatal flaw for Norwalk is that it ignored RLUIPA, Aga Khan said.
“A close reading of the mosque’s complaint shows that the city has treated other religious congregations and secular buildings differently than the mosque by applying different rules and making allowances,” Aga Khan wrote. “When the mosque won the motion-to-dismiss hearing in November 2013, the judge basically told the city in open court that the allegations were sufficient given the evidence that was presented at the time. Game. Set. Match. Over.
“The mosque would still have to connect the dots but I think they have enough to do so.”
Lightfield responded with, “It’s interesting to note that Norwalk hasn’t updated its zoning code concerning exemptions in residential zones for religious and educational facilities. This was an important issue to the zoning commission prior to 2010. While the mosque represents the latest iteration of the problem, there have been others.”
There were discussions about the need to change zoning regulations in 2009-10 when approval was given to the Greek Orthodox Church for an expansion, she said.
The Aga Khan said the Department of Justice is breathing down Norwalk’s back.
“I would argue that even if the mosque chose to build in an area where houses of worship are not allowed, the mosque would still win,” Aga Khan wrote. “The courts in the 2nd Circuit have almost never found an important govt interest that outweighs a church’s proof of burden. In fact, the DOJ has sued cities that restrict where churches can be built.
“Speaking of which we’ve forgotten that the DOJ is waiting in the wings to enter the case if the settlement falls through. In Norwalk vs USDOJ, who is your bet on?”
The footprint of the building that Al Madany wanted to build is only 15,000 square feet, Aga Khan wrote. Doesn’t matter if people think the mosque is too big for the property, it matters what the zoning regulations say, Aga Khan said.
“If the city can win, why was the first attorney so (desperate) to settle that he would do something lawyers never ever do — write an open letter against the mayor. The proof is in the pudding as they say, so far the city has lost a motion to kill the lawsuit. The question is do we really want them to burn our money and build on that record?” Aga Khan wrote.
“The case law on religious institutions and zoning is rather interesting these days because of RLUIPA but I would say that the outcomes have been mixed,” Lightfield replied. “There is a certain amount of judicial leeway in determining what is the meaning of discriminatory thus far nationally, enough to have generated guidelines on how to review zoning code for RLUIPA issues.”
“Respectfully the controlling 2nd Cir. decision says that a zoning denial can be ‘burdensome’ without being discriminatory,” Aga Kahn said back. “Everyone is so defensive around the claim of discrimination (which in this case means being treated differently than other applicants) that they forget about the burden aspect of RLUIPA. Remember that all the mosque has to do to win is show that their practice of religion was burdened. They don’t have to show discrimination, that’s just icing on the cake.
“So to conclude, the city (and everyone else here) needs to think about ‘burden’ and what it means in this context.”
“The burden element is indeed an interesting one, but I would argue that in Connecticut, where the majority of uses are allowed by default except where cited, the idea that the applicant had an unusual, or extra burden to comply with because it was a religious institution would be hard to prove just by what the code said,” Lightfield wrote back. “Remember, Norwalk code says that religious institutions are allowed in aaa zones. The criteria of what to build the defaults to all buildings equally. So any applicant would be burdened by the regs. Of course the remedy would be to comply with a smaller building etc. which I think, although I don’t know for sure, is what the settlement proposal that was first offered up was. I don’t think the suit is a slam dunk in either direction on the law, but I do think that the risk of losing becomes an assessment that drives a settlement for the City more so than the applicant.”
You can read the entire discussion here.