http://www.spectrum.newmilford.com/story.php?id=63070

What's this???  Size of the meeting, not their nature that is the problem???  Premature lawsuits???  RLUIPA does NOT trump rights of residents????  The scale is a bit different, but there are many similarities...

Murphy case not over yet
May 13, 2005 By Lynda Wellman
STAFF WRITER

The Murphy case could be back before the courts once again.
New Milford residents Robert and Mary Murphy have been in federal court with the Zoning Commission since 2000 over prayer meetings held in their Jefferson Drive home.
A March 25 decision in favor of the Zoning Commission from a three-judge panel of the U.S. Court of Appeals for the Second Circuit appeared to finally end the lengthy and costly litigation.
But the Murphys’ attorney said this week he is seekin g a rehearing before the 13 active judges participating on the court.
On Tuesday, Vincent McCarthy, the attorney for the Murphys, said he had filed a motion last week for a rehearing “en banc,” or by the full court.
Court officials said such a hearing only occurs once or twice a year and would require a vote by the majority of the active judges.
Mr. McCarthy said if the March decision stands, “We believe it would have a significant negative impact on civil rights law and RLUIPA Law,” the Religious Land Use and Institutionalized Persons Act.
In 2000, the Murphys’ neighbors complained about the number of people attending prayer meetings, the hours of the meetings and the resulting traffic in a residential zone.
In November 2000, zoners informed the Murphys by letter that the rear parking lot and use of the home for regular meetings of 25 to 40 people were not permitted as a matter of right or a customary use in a residential zone.
A cease-and-desist order was issued Dec. 19, 2000. Zoners said it was the size of the meetings, not the nature of the meetings, that was at issue.
The Murphys immediately sued New Milford, alleging various constitutional and statutory violations.
The Murphys were successful in federal district court, but the U.S. Court of Appeals vacated, or threw out, the decision of the district court.
Mr. McCarthy had argued that the cease-and-desist order violated the Murphys’ constitutional rights to free speech, to assemble peaceably and to exercise their religion freely
“Once you reach a point where a burden is placed on your constitutional rights, it should be enough to bring your case to federal courts,” Mr. McCarthy said Tuesday.
A three-judge panel of the court, based in New York City, heard oral arguments in September, and in a decision written by former Connecticut Governor and Senior Judge Thomas Meskill stated: “We agree with New Milford that the Murphys prematurely commenced this suit.”
The Appeals Court said the Murphys should have appealed the Zoning Commission to the New Milford Zoning Board of Appeals before seeking judicial intervention, and if that failed sought a variance before heading to court.
Steve Byrne, a Zoning Commission’s attorney, said the town had not seen a copy of the latest motion as of Tuesday but remarked, “New Milford gets to just sit back and wait.”
The court, he said, could deny the McCarthy motion, or if it thinks it has merit, would then notify the Zoning Commission.
Mr. Byrne said it’s possible all the judges could review the paperwork already filed.
In the most extreme situation, he said the town would have to go back to the New York Court, resubmit motions and argue the case.
Since the March decision, Mr. Byrne said, the Appeals Courts for the 4th Circuit in Virginia and the 11th Circuit in Florida have followed the Murphy case with similar decisions requiring litigants to exhaust local remedies first before heading to federal courts.
“The courts prefer not to address constitutional issues if they can be resolved in other ways,” Mr. Byrne said.
Zoning Commission Chairman George Doring said he always felt land use was a state and local function and claimed that’s what the March decision reaffirmed.
Mr. McCarthy said if the full court denies his motion and refuses to rehear the case, he still has the option to go to the ZBA or to appeal to the U.S. Supreme Court.