Opinion
CV106012793S.
12-13-2012
NEW ENGLAND PRAYER CENTER, INC. v. PLANNING & ZONING COMMISSION OF the TOWN OF EASTON.
John F. Fallon, Esq, Fairfield, for New England Prayer Center, Inc.
UNPUBLISHED OPINION
John F. Fallon, Esq, Fairfield, for New England Prayer Center, Inc.
GILARDI, J.T.R.
This is an appeal from the decision of the defendant Easton Planning & Zoning Commission (commission), granting, with conditions, the special permit of the plaintiff, the New England Prayer Center, brought to the Superior Court in the judicial district of Fairfield. Neighboring property owners Christopher Michos, Amalia Michos and Colleen Adriani are intervening defendants (intervening defendants).
The court has carefully reviewed the record, listened to the trial of this matter held on May 10, 2012, and considered the briefs of the parties. For the following reasons, the appeal is sustained and the case remanded for further proceedings consistent with this decision.
I
FACTS
The record reflects the following factual and procedural background. On May 18, 2010, the plaintiff submitted a special permit application to the commission, seeking to establish a place of worship on land that it leased from the town of Easton. (Return of Record [ROR], Exhibit [Exh.] 24.) At its meeting of August 23, 2010, the commission approved the plaintiff's special permit application subject to eleven special conditions, enunciated in a " Resolution of Approval." (ROR, Exh. 56.) The plaintiff now appeals the commission's decision, challenging five of the commission's special conditions. The intervening defendants filed a motion to intervene on June 8, 2011, which was granted by the court on September 6, 2011.
The five challenged special conditions are as follows:
On November 15, 2011, the plaintiff filed its appeal brief. The plaintiff argues that their application, as made, complies with the substantive requirements of the Easton zoning regulations (regulations), the special conditions appealed from were not required in order to bring the application into compliance, the regulations do not contain any provisions which form a proper basis for the imposition of the special conditions, the special conditions imposed are not consistent with the commission's past actions with regard to the approval of other Easton churches and places of worship and that numerous aspects of the special conditions appealed from are unduly vague and do not provide a specific enforcement standard. The plaintiff further argues that the application of zoning regulations to restrict religious uses raises concern over the possible infringement of its constitutional rights guaranteed by the Free Exercise Clause of the First Amendment and in violation of the Religious Land Use and Institutionalized Person Act (RLUIPA).
The commission filed its trial brief on January 25, 2012. The commission argues that the conditions it imposed were lawful and the commission was duly authorized under General Statutes § 8-2 and regulations § 7.2.3 to impose conditions of approval. Additionally, the commission posits that the conditions were in accordance with the plaintiff's proposed plans for the property and description of its proposed use. The commission asserts that § 7.2.1 FN4 of the regulations contains general conditions and standards which gave the commission discretion to impose the conditions and that each of the conditions added to the approval of the plaintiff's application was reasonable and supported by substantial evidence in the record. The commission proposes that the plaintiff's proper option is to return to the commission to seek a modification of any condition it deems burdensome.
Statutes § 8-2(a) provides in relevant part: " The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes ... and the height, size and location of advertising signs and billboards ... All such regulations ... may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ..."
Regulations § 7.2.3 provides: " The Commission may attach such conditions to any approval as are necessary to assure compliance with all applicable standards and requirements under these Regulations."
The original return of record was filed on September 9, 2011. A supplemental return of record was filed on September 29, 2011. The court held a trial on May 10, 2012. A second supplemental return of record was filed on August 23, 2012. Other facts and arguments are set forth herein as needed.
II
JURISDICTION
Appeals from decisions of a planning and zoning commission to the Superior Court are governed by General Statutes § 8-8 which provides in relevant part: " (b) ... [A]ny person aggrieved by any decision of a board, including a decision to approve or deny ... a special permit or special exception pursuant to [section] 8-3c, may take an appeal to the [s]uperior [c]ourt for the judicial district in which the municipality is located ..." " A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A
Aggrievement
" [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., at 538-39. " Two broad yet distinct categories of aggrievement exist, classical and statutory." Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008). " [E]ither type will establish standing, and each has its own unique features." Soracco v. Williams Scotman, Inc., 292 Conn. 86, 92, 971 A.2d 1 (2009).
" Classical aggrievement ... requires an analysis of the particular facts of the case in order to ascertain whether a party has been aggrieved and, therefore, has standing to appeal." Fleet National Bank's Appeal from Probate, 267 Conn. 229, 242 n .10, 837 A.2d 785 (2004). " Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ... Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006).
" Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. at 156. Thus, under § 8-8(a)(1), " any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board" is statutorily aggrieved.
General Statutes § 8-8(a)(1) provides in full: " ‘ Aggrieved person’ means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘ aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
In the present case, the plaintiff argues that it has a lease of and is currently in possession of the subject property, and that this status demonstrates a specific personal and legal interest in the subject of the decision appealed from. It argues that it also has an option to purchase the property and that this status also establishes aggrievement. The plaintiff's president, Dan Blaze, testified at trial as to a lease and option agreement dated May 28, 2008, with extensions beyond its two-year term, and that the option remains in good force and effect. The defendants do not challenge the plaintiff's aggrievement. Therefore the court finds, as it has previously determined at the time of the trial, that the plaintiff is aggrieved and has standing to prosecute this appeal.
B
Timeliness and Service of Process
Section § 8-8(b) provides that " [an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section § 8-8(f) states in relevant part: " Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows ... (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of [section] 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal." General Statutes § 52-57(b) provides in relevant part that " [p]rocess in civil actions against the following-described classes of defendants shall be served as follows ... (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ..."
In the present case, the commission's decision was published in the Easton Courier on August 26, 2010. (ROR, Exh. 55.) The marshal's return attests that he served the Easton town clerk two copies of process on September 10, 2010, fifteen days later. Accordingly, the court finds this appeal to be timely and that service of process was proper.
III
DISCUSSION
" [A] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations ... Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] ... Moreover, [the court has] noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site ... [The court] also [has] recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood ... Thus, [the court has] explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008). " When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied." (Internal quotation marks omitted.) Martland v. Zoning Commission, 114 Conn.App. 655, 661, 971 A.2d 53 (2009). " The [plaintiff shoulders] the burden of demonstrating that the commission acted improperly." Gevers v. Planning & Zoning Commission, 94 Conn.App. 478, 483, 892 A.2d 979 (2006).
" The terms special permit and special exception are interchangeable." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 20, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).
" [B]efore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood ... Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process." (Emphasis in original; internal quotation marks omitted.) Martland v. Zoning Commission, supra, 114 Conn.App. at 661-62. " Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Appellate Court and] trial court [have] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal ... Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations." (Citations omitted; emphasis in original.) Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998).
" If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application. The converse is, however, equally true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it ... If, in denying the special permit, the zoning commission construed the special exception regulations beyond the fair import of their language, then the zoning commission acted in an arbitrary and illegal manner." (Citations omitted.) Irwin v. Planning & Zoning Commission, supra, 244 Conn. at 628-29. " [O]n factual questions ... a reviewing court cannot substitute its judgment for that of the agency." (Internal quotation marks omitted.) Martland v. Zoning Commission, supra, 114 Conn.App. at 662. " A special permit may be denied only for failure to meet specific standards in the regulations, and not for vague or general reasons." (Internal quotation marks omitted.) Bethlehem Christian Fellowship v. Planning & Zoning Commission, 73 Conn.App. 442, 465, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002).
" In granting a special exception, the board may, in a proper case, impose a condition but only where it is warranted by the regulations." Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 354, 232 A.2d 916 (1967). " When acting upon a special permit, the commission is authorized to impose conditions necessary to protect public health, safety, convenience and property values based on § 8-2 of the General Statutes. The conditions imposed must be in accordance with the comprehensive plan found in the zoning regulations and their general purpose. The board can grant a special permit if all the requirements of the ordinance have been satisfied and the applicant is willing to comply with conditions which the board can impose. While the cases refer to conditions to protect the public interest as a concept in approving special permits, this subject is not widely discussed ... The type of conditions authorized by [section] 8-2 depend upon the specific application before the agency. These additional conditions are to allow the granting of special permits, not to invent reasons to turn them down." 9 R. Fuller, Connecticut Land Use Law and Practice (3d Ed.2007) § 5:3, pp. 183-84. " While the special permit cases do not discuss the type of conditions which the agency may consider in satisfying § 8-2, other cases suggest that the agency cannot deny a special permit application which meets the criteria in the agency's existing regulations." Id., § 5:4, p. 184.
" [C]onditions attached to a special permit are not per se invalid. Rather, their validity must be determined on a case-by-case basis. A key determinant in whether a condition to a special permit is valid is that condition's relationship to the action sought by the applicant." Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 171, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004). " Conditions imposed by a zoning board of appeals must be expressed with sufficient clarity to inform the applicant of the limitations upon the use of the land, and to protect nearby owners. Thus, conditions have been held to be ineffectively expressed where they limited use in terms of the applicant's verbal statements to the board. Conditions that are too vague, or not clearly articulated are found to be void. To be enforceable, conditions must be expressed in sufficiently definite terms to enable the permit holder, adjacent landowners, and all interested parties to know what is required of the permit holder." (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, 127 Conn.App. 125, 135-36, 14 A.3d 386 (2011).
In Farmington v. Viacom Broadcasting, Inc., 10 Conn.App. 190, 196, 522 A.2d 318, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987), the court stated that " [w]here it appears that a local zoning authority has made an honest judgment [that] has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority ... [The court] will not substitute [its] discretion for the actions of a local zoning agency." (Citation omitted; internal quotation marks omitted.) Id. One of the issues in that case was " whether the trial court erred in concluding that the plaintiff [commission] had authority to require that the defendant dismantle its standby broadcast tower as a condition of granting the defendant's special exception for the construction of a new, taller broadcast tower ..." (Internal quotation marks omitted.) Id., at 191. The court found that " [a]s the commission has the statutory authority to grant special exceptions only if certain requirements relating to safety and aesthetics are met, the commission could reasonably have granted a special exception for a new broadcast tower on the condition that the defendant remove the standby tower." Id., at 196. In Farmington, the court cited to Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), which held that " a zoning commission had the authority reasonably to condition the grant of a special permit upon certain on and off-site changes and improvements by the applicant and by other town agencies not under the commission's control." Id., at 194. " [T]he [ Lurie ] court noted that [General Statutes] § 8-2 permitted local zoning authorities to impose certain standards and conditions on the use of property when the public interest required it." (Internal quotation marks omitted.) Id., at 195.
A
Traffic Considerations
First, the court will address the appropriateness of evaluating traffic considerations in this case. The plaintiff argues in its brief and at trial that conditions three and four are traffic-based, as they articulate limitations on attendance and parking. The plaintiff contends that under Connecticut law, offsite traffic considerations do not pertain to applications for special permits unless the regulations at issue explicitly permit such inquiry. The plaintiff is thus arguing that the third and fourth conditions attached to its special permit application should be eliminated due to their traffic-based nature. The commission contends that there is no attempt to talk about offsite traffic in this situation, but rather the conditions are based on what the plaintiff represented to the commission for onsite considerations.
" The maximum attendance at each event shall be limited to 300 persons and not more than 30 staff or presenters." (ROR, Exh. 56.)
" All parking and loading on the site shall be limited to the spaces provided for such as shown on the site plan, and there shall be no parking off-site." (ROR, Exh. 56.)
In Friedman v. Planning & Zoning Commission, 222 Conn. 262, 266, 608 A.2d 1178 (1992), our Supreme Court stated that " [past decisions] serve to illuminate two propositions with respect to the role of traffic considerations in weighing site plan applications. First, the language of a given zoning regulation may, by its textual content, limit the scope of the use of traffic considerations. Second, once a zoning authority establishes that a particular use within a zone is permitted, e.g., an office building or a church, a conclusive presumption arises that such a use in general, does not adversely affect the traffic within the zone. Neither of these tenets, however, precludes an examination into the special traffic consequences of a given site plan when the applicable zoning regulations permit it." Id.
Here, it is not clear that the regulations permit the commission to examine offsite traffic considerations. Indeed, the challenged conditions themselves do not mention anything about offsite traffic considerations. While restrictions on number of people and parking could theoretically implicate offsite traffic concerns, the commission does not make a traffic-based argument as to either condition. On the contrary, with regard to the third condition in particular, the commission even states in its trial brief that " this particular condition pertains to onsite conditions, not offsite." (Emphasis in original.) The court takes the commission's arguments at face value and will not impute meaning that is not there, and will proceed to address the plaintiff's appeal of the special conditions imposed on its special permit via an examination of the record. Accordingly, the court will not consider these grounds as to conditions three and four.
B
Standard of Review
In the present case, the commission issued a decision to the plaintiff on August 30, 2010, that included its findings and listed the special conditions, five of which are now at issue. (ROR, Exh. 56.) The commission did not state reasons why it included the special conditions. Id. " [A] commission's failure to state on the record the reasons for its actions ... renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006). " In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001). " The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised ... The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site ... or through their personal knowledge of the area involved." (Internal quotation marks omitted.) Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.App. 768, 783, 916 A.2d 99 (2007).
" Substantial ... evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 641, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). " This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury ... The corollary to this rule is that absent substantial evidence in the record, a court may not affirm the decision of the board." (Internal quotation marks omitted.) Martland v. Zoning Commission, supra, 114 Conn.App. at 663. " The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence ... The reviewing court must take into account [that there is] contradictory evidence in the record ... but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence ..." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993).
In Martland v. Zoning Commission, supra, 114 Conn.App. at 667, the court held that " the requirement of [a] restoration condition [on the plaintiffs' special permit application] was improper, " because the record did not reveal substantial evidence to support the imposition of the condition. Id. The restoration condition instructed the plaintiffs to restore, after excavation, all disturbed areas above water level to a comparable condition prior to excavation. Id., at 658. The court stated that upon " review of the entire record ... the evidence pertaining to [a] berm [in existence before excavation] as a noise buffer is not substantial because it is not supported by anything other than speculation and conjecture on the part of those objecting to the plaintiffs' proposed activities ... Neither [witness] indicated any type of expertise that would buttress their lay opinion on the berm's ability to buffer the surrounding areas from noise. Their statements relating to the change in noise if the berm was not restored amount to speculation and a general, unsubstantiated concern ... There was no scientific data comparing the noise levels of the area with the berm in its present and proposed conditions ... Even if we assume arguendo that the noise level would increase as a result of the changes to the berm, the record is devoid of any evidence indicating how much of a noise increase would be permissible before the public health, safety, convenience or property values would be impacted." (Citations omitted). Id., at 665-66. The court also found that " there [was] nothing to support the claim that [the berm] acted as a vegetative buffer [either]." Id., at 668.
C
Application
1
The first condition imposed by the commission on the plaintiff states: " Provide a Conservation Easement over the 100-year flood plain area of the Mill River designed to protect the natural vegetation and ecology of the area as recommended on the adopted Town Plan of Conservation and Development. A limited trail easement may be included within the Conservation Easement as desired by the Prayer Center." The plaintiff argues that it does not object conceptually to the conservation easement but wants to maintain the historic use of a picnic area contained on the property within the contemplated conservation easement area and to further ensure that conservation easement would not preclude allowance for pedestrian walking trails along the length of the river abutting the plaintiff's property so as to provide proper access to the river for recreational fishing as the plaintiff has done in the past. The plaintiff also argues against any attempt to create unrestricted public access due to concerns with security and trespass. The plaintiff contends that the commission did not provide a specific draft conservation easement supplementing this condition and unless or until it does so, the condition is unduly vague and unenforceable.
The commission counters that the actual drafting of such an easement would not occur simultaneously with the commission's resolution of approval, but rather at a later date, with the assistance of legal counsel. The commission posits that the plaintiff would have ample time to review and comment on such a draft at the appropriate time. The commission contends that the condition is standard and reasonable.
A review of the record reveals the following evidence. At the July 12, 2010 public hearing of the commission, neighbor Chris Miles stated: " I heard talk about public access to the property and I was not, I did not hear anything about particular easements that were clearly established for public access to the property, whether or not the town will be given an easement so people may fish or walk along the river bank or use the property in other ways and given that may, that is, one of the intended benefits of this type of development, should you decide to approve it, I would like to see some actual enforceable access for the town residents that, if in fact, it is determined that it is something beneficial that we can ... benefit as townspeople, actually use the property." (Supplemental Return of Record [SROR], Exh. 58, PZC Transcript 7/12/10, p. 43.) In response to Miles, the plaintiff's attorney, John Fallon, stated: " The Conservation Commission is studying the issue as part of their ongoing hearing process, conservation easements and potential public access." (Id. )
In Attorney Fallon's opening statement to the commission at the August 9, 2010 public hearing of the commission, he stated that " it is our intention as we have indicated with Trout Unlimited to work with them very very affirmably and constructively to make sure that programs with regard to access to the river for recreational fishing are maintained. We have even had very positive conversations with them in terms of participation in some of their educational programs that they conduct with regards to the river. Our concern with regard to unbridled public access relates to questions in security with regard to the property. The Blazes, who owned the property and resided at the property for many decades, know firsthand the difficulty that has arisen with regard to maintaining proper and safe access and proper and safe control of the property. We worry greatly about an unbridled public access with a parking lot or parking area that instead of becoming a parking area for supervised and monitored programs and access to the river for recreational fishing or other passive recreational activities could become a late night haven for gatherings and so on and so forth and we have really experienced in the past and have tried to police on our own so we hope you would not impose a public access requirement because we just do not think that is productive or necessary in order to accomplish the environmental and recreational goals that we all want to accomplish." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 3.) Attorney Fallon submitted to the commission that Trout Unlimited was " sensitive to [the plaintiff's] concerns and considerations about just a public access easement that could allow anybody for any [reason] on the property." ( Id., at p. 5.) The commission's chairman, Robert Maquat (commission's chairman), replied: " Very general." (Id. ) Attorney Fallon stated: " Our goal though is not to be exclusive with regard to the property, I just want to emphasize that, but we want to be inclusive with regard to the fishermen and other legitimate community activities that can enjoy the river resources but we do ask you, however, not to impose a general public access easement because of our concerns." ( Id., at p. 7.)
Additionally, Attorney Fallon stated: " We prefer not to have a public access easement, a documented public access that tries to define who and when and how we come on the property. What we would rather do is and suggest to you is that in terms of the primary focus movement, constituencies of interest with regard to that access, that being Trout Unlimited and the recreational fishermen that they represent, we have engaged in a very close dialogue ... There is no public access easement in place with regard to the shoreline now and yet it is a rich resource for recreational fishermen and that is because of the Blazes in their ownership of the property for so many decades has seen to that. We would like to maintain that status quo because we are afraid if we start to codify a public access, you know, we may limit it in such a way that would be unfair to others and may open it up in such a way that will raise concerns that we sincerely have about security and safety." (SROR, Exh. 59, PZC Transcript 8/9/10, pp. 23-24.)
In a document entitled " Additional remarks read by Fred Zarrilli, NEPC Board Member and President, " dated August 9, 2010, the plaintiff states, regarding public access: " As we have already presented, we intend to operate the property in a manner that is welcoming of all. However we do not intend for this to be taken to mean that we intend to offer broad public access or public easement per se in the legal sense that may be applicable to public parks and the like. As a general matter, [the plaintiff's] programs and ministry is available to all and enjoyment of the grounds will be widely available to [the plaintiff's] attendees, within reasonable and customary guidelines and limitations. We view this as consistent with what one would find at churches and house of worship generally. Consistent with this, we expect and require that [the plaintiff's] rights and privileges of ownership and operation of the property are the same as those applicable generally to churches and houses of worship." (ROR, Exh. 42.)
At the August 23, 2010 commission meeting, the commission's chairman stated: " You know, when the conservation easement language is drafted, this is when we would take this up. The way we word this sentence, a limited trail easement may be included within the conservation easement as desired by the prayer center. What I envision is that you folks come back to us perhaps during the language of that conservation easement and we can address it then, rather than trying to drill down, too specific, now, where, frankly, we do not completely understand your needs and yet I think you understand where we are coming from." (SROR, Exh. 60, PZC Transcript 8/23/10, p. 5.) The commission discussed aspects of this condition, and the commission's chairman again stated that he thought " these are all things that we will deal with, when the construction of the conservation easement, is front and center ... I think, from a planning function, we can address that from a planning standpoint at that time." (Id., at p. 6.)
The parties agree that the terms of an easement have not yet been established and are, accordingly, unknown because they do not exist. Thus, the court finds this condition of approval " too vague [and] not clearly articulated" because it is not " expressed in sufficiently definite terms to enable the [plaintiff], adjacent landowners, and all interested parties to know what is required of the [plaintiff]." Anatra v. Zoning Board of Appeals, supra, 127 Conn.App. at 135-36. Accordingly, as to the first condition, the appeal is sustained for vagueness.
2
The second condition imposed by the commission on the plaintiff states: " Activities conducted at the Prayer Center shall be limited to Prayer Center functions and other non-profit events sponsored by the Prayer Center." The plaintiff argues that this condition is unduly vague and arguably could inhibit or prevent the plaintiff from conducting programs and activities in conjunction with other religious and not for profit organizations as well as preventing the plaintiff from making its property available to other religious and/or charitable organizations for beneficial public service programs and activities. The plaintiff contends that there is no provision in the regulations to support the imposition of this condition which redundantly and vaguely seeks to enforce a standard with regard to utilization of the property that is both unnecessary and unsupported by any provision of the regulations. The plaintiff posits that arguably the condition could be interpreted to limit its ability to offer an educational program or seek, as part of an activity, to charge an enrollment or attendance fee to defray costs of a program.
The commission counters that such speculation by the plaintiff is both unreasonable and not supported by anything in the record, and that the commission has simply placed a reasonable condition on the approval, consistent with the plaintiff's affirmative representations.
A review of the record reveals the following evidence. At the July 12, 2010 public hearing of the commission, in response to a commission member's question about who would be holding events at the site, one of the plaintiff's founders, Gina Blaze, responded that " [she thought] it would all be by New England [Prayer Center]." (SROR, Exh. 58, PZC Transcript 7/12/10, p. 15.) Attorney Fallon stated at the hearing that " [t]hey are not going to lease out the facility, so that is the answer to that question. You know we certainly will cooperate and collaborate from time to time with other religious organizations. The facility and the programs of the facility will always be under the direction, management and care of the New England Prayer Center." (Id., at p. 16.) Attorney Fallon also stated that " [y]ou cannot run a non-profit religious facility and assume you are going to run it like some kind of capitalistic business approach because that is not what you are and that is not what is being approved. We have no plans for anything like that." (Id. ) Attorney Fallon stated: " Condition of approval, we are not a commercial enterprise. We are not going to be running seminars for a fee." ( Id., at p. 34.) Attorney Fallon also stated: " [W]e are not in the seminar business, we are not in the commercial counseling business, we are not a profit prayer center so there is not going to be any marketing of programs for fee. Again, like all churches and places of worship, yes, we have to sustain ourselves but we do that through a process of donations and not through marketing in any commercial manner the religious services that we provide." ( Id., at p. 35 .) Attorney Fallon reiterated in response to a question about the purpose of the plaintiff, that " there would be a condition of approval that there would be no commercial enterprising of our seminars, all of [the] programs would be free. Clearly a conference center would not lend itself to such a condition of approval." (Id., at p. 44.)
At the August 9, 2010 public hearing, Attorney Fallon stated that the plaintiff " holds events that are free of charge for attendees. However, [the plaintiff] also holds events that include registration fees and other charges. Of course, [the plaintiff] also incurs event-related costs. There was a question at the last meeting about whether perhaps some events are commercially motivated to generate revenue. To this concern, we would point out that we, our guiding limitation is that we are a tax-exempt organization and the federal tax code will control that." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 14.) Attorney Fallon added that " there was a question about use of the property by other organizations and there was a question raised about the use of the property by unrelated parties. Historically, [the plaintiff] sponsors and operates its on-site activities directly, and we expect to continue to operate primarily in this manner. There will be times when [the plaintiff] allows other organizations to hold events at the property. For example, a given church or charitable organization in the area may use the property or a portion of it on a given day for a meeting or fellowship event. [The plaintiff] may arrange for a church or local ministry to use the main hall or meeting rooms. [The plaintiff] may cosponsor on-site events with relationship churches. Associated revenues may be realized, whether in the form of direct charges, cost reimbursements, honorariums, or otherwise. To this concern, however, we would again point out that our guiding limitation is our tax-exempt status and our tax-exempt purpose. And again, we expect and require that our rights and limitations be the same as those applicable generally to churches and houses of worship that also from time to time make their facilities available for such community and religious-sanctioned events." (Id., at pp. 14-15.)
Also at the August 9, 2010 public hearing, Attorney Michael Bologna, representing Christopher Michos, one of the intervening defendants, asked the commission to make a specific condition of approval consistent with Polly Edwards' recommendation " that there be no rental of this facility ..." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 17.) Attorney Bologna stated that Christopher Michos was " seeking to avoid any kind of commercial use of the facilities." ( Id. ) Polly Edwards, the Easton health officer, stated, in a memorandum dated August 9, 2010: " [W]e are recommending approval of the proposed usage [kitchen layout and septic design] based on the assumption that the facility will be used for New England Prayer Center events only and will not be made available as a rental for public events." (ROR, Exh. 37.)
The commission cites no portion of the regulations to warrant this condition. Parish of St. Andrew's Church v. Zoning Board of Appeals, supra, 155 Conn. at 354. In fact, § 7.3 of the regulations, which pertains to churches, also governs special permits for " museum[s], art galler[ies], private school[s], private recreational club[s], [and] nursery school[s], " any number of which could be run for profit. The commission also fails to justify the condition, based on evidence, as one " necessary to protect public health, safety, convenience and property values based on § 8-2 of the General Statutes." 9 R. Fuller, supra, § 5.4, p. 184. Accordingly, as to the second condition, the appeal is sustained because it is not supported by substantial evidence.
3
The third condition imposed by the commission on the plaintiff states: " The maximum attendance at each event shall be limited to 300 persons and not more than 30 staff or presenters." The plaintiff argues that the regulations provide absolutely no basis for the imposition of such an extraordinary condition seeking to impose a unilateral limitation on the utilization of the property by the plaintiff, and that therefore the condition is legally inappropriate. The plaintiff contends that " [t]he very purpose and the programs of the prayer center will be significantly impacted if it is forced in those unusual situations where attendance might exceed three hundred (300) to turn individuals away who want to participate in a prayer center service or program function because 300 other people were already present." It argues that the record demonstrates nothing which would justify the imposition of a condition arbitrarily limiting the number of people who could attend a worship event or program on the thirty-acre property to 300 people.
The commission counters that the plaintiff made it abundantly clear that 300 people was its maximum limit and that there was virtually no discussion of large (over 300 people) events— indoors or outdoors on this site— during the entire public hearing. The commission compiled a list of twelve instances from the record in which the plaintiff discussed the number of people attending prayer center events, classifying it as overwhelming evidence confirming a 300 person maximum. The commission argues that based upon the substantial evidence as to the capacity needs, the limit of 300 people and 30 staff was perfectly reasonable and completely consistent with the plaintiff's representations.
At trial, the plaintiff argued that it was absolutely explicit on the record at the public hearing that 300 is the physical capacity of the worship hall, and it would not want the 300 number to become a fixed standard for any activities on the thirty-acre site. (Trial Transcript [T.T.], p. 20.) The plaintiff argued that no other church of house or worship in Easton is so limited, in that they cannot have a parish picnic, bazaar, fair or concert without having somebody stand there with a clicker clicking off 300 names. (Id. ) The plaintiff contended that the condition is not supported by the regulations and not necessary to bring the application into compliance with the regulations. (Id. ) The plaintiff conceded that " for most any foreseeable event, we will never run up against that 300 number, but the problem is there could be activities as there are in many houses of worship ... Bazaars, picnics, fairs, concerts where once in awhile we want to use the property." ( Id., at p. 23.)
The commission contended at trial that there is no evidence in the record about other houses of worship in Easton and that, based on the record, the parties cannot represent what has happened at other religious institutions in Easton. (T.T., p. 38.) The commission also argued that the capacity of the property outside of the structure itself was not discussed in any great length and that it did not come up in any significant degree in the record. (Id., at pp. 33-35.) The intervening defendants argued at trial that the plaintiff did say that it might want to have an outdoor picnic with amplified sound, but did not say it might want to have an outdoor picnic with more than 300 people. ( Id., at p. 47.) The plaintiff responded at trial that, at the public hearing, it referenced 300 seating for a potential banquet in its traffic report. (Id., at p. 48.) The plaintiff stated: " [W]e did make the point that we have no objection to the building and fire code occupancy requirements as it related to the structure. But we did tell the commission as part of the record that we did not want to see that number of 300 transposed in a manner that would prevent us from having occasional outdoor events like picnics and concerts on this thirty-acre property." ( Id., at p. 49.) The intervening defendants countered that the plaintiff was only referencing sound and not capacity. (Id., at pp. 49-50.)
A further review of the record reveals the following evidence. At the July 12, 2010 public hearing of the commission, the plaintiff's project manager, Matthew Evans, stated that the " [a]verage attendance presently of most meetings [of the plaintiff] is between about nine people and ninety." (SROR, Exh. 58, PZC Transcript 7/12/10, p. 3.) Attorney Fallon stated at that hearing that " [the traffic report] was prepared on a very worst case scenario basis taking as a given activities that probably would occur very very very seldom during the life of the prayer center." (Id., at p. 5). The plaintiff's licensed architect, John Jones, stated that " [c]ertainly, on a sunny spring day or autumn day or during the summer if the weather is available it would be wonderful for a group to be outside." (Id., at pp. 11-12.) Attorney Fallon also stated that " when you engage a traffic engineer ... it is his job as a good traffic engineer to provide you with a worse case if you will assessment, to talk to you about what the traffic impacts are going to be not at the periods of normal usual typical activity and occupancy but at the times of maximum occupancy. Now in our case, we are not going to reach those times of maximum occupancy and activity very often. Yes we have a prayer hall which accommodates 300 people but most churches and synagogues have seating in their main sanctuaries that far exceed their day to day needs of congregation or parish. Come Christmas or Easter or the high holy days, they may be glad they have those seats once or twice a year and it is the traffic engineer's job to give you the data based upon that worst case assumption." (Id., at pp. 13-14.) Attorney Fallon also stated that " [w]e look forward to having periodic opportunities to share this beautiful property and its spiritual mission for perhaps larger events although we think very very very very few will ever approach the capacity but having said that we did ask [the consulting firm] to examine the traffic from the standpoint of those possible isolated terms and the conclusions speak for themselves ..." (Id., at p. 14.)
The plaintiff's president of the board of directors at the time, Frederick Zarilli, stated that " [i]f there is any sense that there is an attendance problem [at speaker events], then maybe we will have a situation where you have people have to sign up. Actually we have never had that problem as we have operated at a much smaller facility, but that might be a management issue going forward. At the same time [a] speaker may hold two or three ... meetings at the prayer center, would be meetings which have historically have been forty people, fifty people, and sometimes as many as ninety people ..." (SROR, Exh. 58, PZC Transcript 7/12/10, p. 18.) Attorney Fallon stated that " in the course of traffic engineering that traffic report looks at ... situations involving a maximum occupancy that really are not the essence of who we are and what we are doing." ( Id., at p. 20.) The plaintiff's traffic engineer, Nick Fomenko, stated: " [W]e are looking at a worst case scenario. The most intense possible use which will happen rarely would be of a banquet type use and the [Connecticut Department of Transportation] has standard rates used for trip generation for a banquet type use which is 0.40 vehicles per seat, per guest seat. Based on ... 300 attendees at a rate of 0.40 vehicle trips per guest seat, we have estimated approximately 120 site trips." (Id ., at p. 21.) Fomenko confirmed that the plaintiff changed its plans to accommodate events hosting 400 people to events hosting 300 people. (Id., at p. 22.) The commissioners clarified with Fomenko that the number of people his studies incorporated attending banquets would be 300, producing 120 site trips, the total of the entering and exiting vehicles, at peak. (Id., at pp. 24-25.) Attorney Fallon stated: " We are proposing 184 parking spaces on site. The prayer hall has seating for 300. We are actually confident that is a number that will more than meet the needs even at these worst case scenario times and indeed the traffic institute, I think, provides for what should be assumed parking for purposes of certain assemblies ..." (Id., at p. 35.)
Christopher Michos expressed concerns about " [w]hat are some of the main activities that might bring 300 people to the prayer center for what they usually describe as the main event. Many of the main events that I have gone to have also been at Madison Square Garden, so I have ... concerns when I hear things like worst case scenario and main events ... I would like to see some type of disclosure in terms of the numbers of these types of events and when they are going to take place." (SROR, Exh. 58, PZC Transcript 7/12/10, p. 45.) Neighbor Colleen Kearney also expressed concern about the main event, stating: " I am not opposed to this as the person who is directly across from it ... I am concerned at the number of people for the main event." ( Id., at p. 40.) In response to septic usage concerns, the plaintiff's professional engineer, Ted Crawford, stated that the plaintiff " used the worst case scenario of 300 people ... at 5 gallons per person to generate the total daily usage of 1, 500 gallons ... based on our presumed use of the worst case scenario." ( Id., at p. 50.)
At the conclusion of the July 12, 2010 public hearing, the commission's chairman requested that the plaintiff " come prepared [at the August 9, 2010 public hearing] to go into a little bit more detail and maybe focus on the highly anticipated populated events that might go on the property. You can come up with maybe a little bit more in the way of example that would be helpful to us, just so we have a little better understanding. I think the public would feel better if they had a better understanding of that as well." (SROR, Exh. 58, PZC Transcript 7/12/10, pp. 51-52.) The chairman inquired as to whether the plaintiff " would ... anticipate the same type of events but maybe more people or because you have a larger facility, would it prompt some other types of events that you had not had in the past. If you could speak to that, it would be great." ( Id., at p. 52.) Attorney Fallon responded: " We will consider all that." (Id. )
At the August 9, 2010 public hearing, Zarrilli stated that recent weekly meetings at the plaintiff " typically ranged from ten to fifty attendees, " and that speaker and lecture meetings, typically between two and six per month, typically draw " from forty to ninety people." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 12.) Zarrilli also stated that " in recent years, [the plaintiff] has held larger conference events one to two times per year ... The conferences have been attended by 250 to 300 people ..." (Id. )
Attorney Bologna stated at the August 9, 2010 meeting that his client, Christopher Michos, was asking " that 100 people for worship and 300 people maximum for banquet ... that that be a specific condition of approval." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 17.) Attorney Fallon responded that " [the plaintiff did not] have any problems with [Attorney Bologna's] capacity except we think he misspoke. If you look at the material, we do show in our traffic report and it has been said in previous times and have said that we have 300 seating for potential banquet, we refer to it in our traffic report, that is accurate. We also have the capacity for worship in the prayer hall, 300, I think [Attorney Bologna] said 100, that just is not accurate. It is 300, so the number is 300 and obviously we are limited by our capacities by fire and building code requirements as well but certainly have no problem with that being articulated. We have a thirty-acre property, although not as much of it, as I said before, is useable, but still it encompasses thirty acres. We are a church and a house of worship. We do not want to be the only house of worship in Easton that cannot have an outdoor picnic that might have amplified music. Or cannot have a summer evening like this, a concert, that might have some religious aspects to the music and we do not want to be held to that standard." ( Id., at pp. 20-21.) Attorney Fallon also referenced Zarrilli's comments about the plaintiff in stating that " the type of events that are going to require the bringing in of foodstuffs and the like ... are going to be very rare so that those opportunities will be rare and we will ensure that all such deliveries are taken when they need to be taken in a manner that is consistent with the neighborhood." (Id., at p. 21.) In a memorandum to Police Chief John F. Solomon dated July 30, 2010, Officer Gary J. Csanadi, who was assigned to review the application and plans, stated: " The site will have the ability to serve events hosting 400 persons for worship or 300 persons for banquet use." (ROR, Exh. 38.) In an August 2, 2010 email from Ted Crawford to Margaret Anania of the commission, Crawford stated that " it [was his] understanding that 300 is the intended maximum capacity." (ROR, Exh. 39.) This was in response to an email from Anania, dated the same day, inquiring about maximum capacity to tell the town sanitarian, and Anania stated that " all [she] could tell [the sanitarian] was the one you used for parking and septic and water capacity which is 300. Please advise." (Id. )
At the August 23, 2010 commission meeting, in response to a fellow commissioner's inquiry about the scope and number of people outside the structure, the commission's chairman stated: " The basic concept is, we are asking them to move activities indoors. There are midnight masses, or whatever else might go on, and we are not saying you cannot do those things, but we want to limit the outside activities, lighting, amplification, we want to move those activities indoors." (SROR, Exh. 60, PZC Transcript 8/23/10, p. 9.) Another commissioner stated: " Right ... limit the activities ... it is rather general, it could be a concert, it could be some sort of music, I imagine, with 300 people, which could be very disruptive to the neighborhood." ( Id. ) In the commission's " Resolution of Approval, " the commission stated as a finding that " [t]he parking area, 184 off-street spaces to accommodate a maximum attendance of 300 persons, will be sufficient for the proposed use, will be adequately screened to protect the neighborhood, and will be served by a safely-designed entrance and exit driveway as shown on the proposed plans ..." (ROR, Exh. 56 .)
The record lacks substantial evidence to warrant this condition, particularly as applied to use of the thirty-acre parcel in its entirety. Representations may have been lost in translation between the plaintiff's representations about " maximum occupancy" and " worst case scenario" and the commission's understanding of the use of the entire thirty-acre parcel. It is clear from the record that the prayer center structure has a maximum occupancy of 300 people. It is also clear that the plaintiff intends to use the entire parcel, including the vast outdoor acreage beyond the structure. There is no substantial evidence in the record to support the limitation on staff or presenters needed for prayer center events. Furthermore, while there may exist substantial evidence to support an occupancy limitation of the structure, there is no substantial evidence to warrant the condition as it pertains to use of the parcel in its entirety. Accordingly, as to the third condition, the appeal is sustained because it is not supported by substantial evidence.
4
The fourth condition imposed by the commission on the plaintiff states: " All parking and loading on the site shall be limited to the spaces provided for such as shown on the site plan, and there shall be no parking off-site." The plaintiff argues that " [t]o the extent that offsite parking is prohibited on the adjacent streets the prayer center does not contest the authority of the municipality to impose such a restriction but submits that this is a matter as it relates to such offsite parking that is within the police authority of the community and is not an appropriate element of a ‘ special condition’ enacted as part of a special permit approval." The plaintiff also contends, as to onsite parking, that there is no basis in the regulations to attempt to limit or prevent " overflow parking" as might be required for special events or programs of the plaintiff, and that no other church or house of worship within Easton has been subject to such a zoning condition. The plaintiff confirms that it will comply with regulations § 7.3.4 so that no occasional overflow parking will be permitted in the front yard nor within fifty feet of any property line.
Section 7.3.4 of the regulations provides: " Location of off-street parking shall be determined according to the following standards: (A) No parking shall be permitted in the front yard except for necessary access drives. (B) No parking area shall be located within 50 feet of any property line. (C) All parking areas and access drives shall be located so as not to adversely affect the character of the neighborhood in which the premises are located. (D) Should the layout of the property including the improvements and the parking warrant parking to be located in front of the structure, the Commission may permit up to 10 % of the off-street parking in front of the structure provided that the parking is designed and limited to visitor use and the foregoing standards."
The commission counters that if the plaintiff needed more onsite parking, it could have applied for it originally or seek a modification in the future if needed. It contends that it is difficult to see how a condition regarding parking is unreasonable since the regulations specifically address parking. The commission posits that it is more than fair that the plaintiff offer some assistance in monitoring offsite parking by requesting that their guests refrain from parking offsite.
A review of the record reveals the following evidence. At the July 12, 2010 public hearing, Crawford stated that " our parking area around the site ... provides 184 ... spaces." (SROR, Exh. 58, PZC Transcript 7/12/10, p. 7.) The commission's chairman asked Fomenko about the parking spaces: " [W]ith 184 parking spaces ... Do you contemplate what to do if there are more cars than parking spaces, is there a spill over consideration?" ( Id., at p. 22.) In response, Fomenko confirmed that the plaintiff previously contemplated more parking spaces, 208, so it had been revised. (Id., at p. 23.) Fomenko stated: " [S]ome of the reductions in parking was for a runoff issue ... to not overpark the site and create excessive impervious area ... [T]he two transportation engineers ... have documented a type of parking generation which is a standard ... they do not have a ... title for land use related to banquet use however they do have a land use identified for churches and based on the use for churches they have determined that the parking demand of 0.44 spaces per attendee ... [w]hich, if you were to use the 400 number, that would come up with 176 spaces and if you were to use the 300 number it would be 75 percent of that, which is significantly less than the 184 spaces provides on site. That is proposed." (Id. ) As previously noted, Attorney Fallon stated: " We are proposing 184 parking spaces on site. The prayer hall has seating for 300. We are actually confident that is a number that will more than meet the needs even at these worst case scenario times and indeed the traffic institute, I think, provides for what should be assumed parking for purposes of certain assemblies, so our position on the parking is that we need to have proper parking on site not only because we owe that to the neighborhood but because of the nature of this site, its location, we will not be able to function without it, but, 184 spaces for a house of worship, assembly area, is by any standard ... under any regulations I am familiar with, or under the traffic institute guidelines, more than adequate." (Id., at pp. 35-36.)
Attorney Fallon was asked by the commission's chairman that " on the off-chance that there were more than 186 vehicles, it would be safe to say that they would not park on South Park Avenue and we could make a condition of that as part of whatever we adjudicate?" (SROR, Exh. 58, PZC Transcript 7/12/10, p. 36.) Attorney Fallon responded: " Right, and then that is great, and then you only have to look at the site plan. Even if we took the scenario ... more than adequate on site capacity for such a special event. We do not foresee 184 spaces being inadequate by any means." ( Id. )
In the July 30, 2010 memorandum to Police Chief Solomon, Officer Csanadi stated: " Parking on the site will be provided within surface lots containing 184 spaces." (ROR, Exh. 38.) As previously noted, in the commission's " Resolution of Approval, " the commission stated as a finding that " [t]he parking area, 184 off-street spaces to accommodate a maximum attendance of 300 persons, will be sufficient for the proposed use, will be adequately screened to protect the neighborhood, and will be served by a safely-designed entrance and exit driveway as shown on the proposed plans ..." (ROR, Exh. 56.)
The record contains substantial evidence to support the condition, to the extent that it requires cars onsite be parked in parking spaces, pursuant to the parking regulations. The record does not contain, however, substantial evidence to support the condition to the extent that it prohibits all offsite parking. Such a prohibition, which the commission may have intended to apply primarily to local street parking, could also be construed as a prohibition on the use of shuttles or carpooling. Prohibition of these activities is not supported by substantial evidence. Accordingly, as to the fourth condition, the appeal is sustained because it is not supported by substantial evidence to the extent that the condition prohibits offsite parking.
5
The sixth condition imposed by the commission on the plaintiff states: " Outdoor activities at the amphitheater shall be without objectionable sound amplification; i.e. of low volume directed only toward the building. Outdoor activities shall not extend beyond 11:00 p.m." The plaintiff does not challenge the second part of this condition that " [o]utdoor activities shall not extend beyond 11:00 p.m." The plaintiff maintains, however, that the first part of this condition is unduly vague and has no specific enforcement standard. Specifically, the plaintiff argues that this condition " is so unduly vague that it does not provide a proper standard so as to allow [the plaintiff] to conform its activities to such a subjective standard, " and therefore contends that the condition " does not provide a proper basis for a condition of approval."
The plaintiff stated in its appeal brief: " The prayer center does not object to the imposition of a condition that provides that there will be no outdoor sound amplification after 11:00 p.m." The plaintiff stated at trial: " What [the commission] said in one of the conditions [condition six] is that outdoor activity at the property will cease at 11:00 p.m. We have no problem with that. We agree with that aspect of the condition ..." (Trial Transcript [T.T.], p. 18.) The plaintiff continued argument, however, on the sound amplification part of condition six.
The commission counters that it enacted this condition in order to provide the plaintiff with a fair standard that provides a reasonable guideline for its activities and that the condition is fair and reasonable.
A review of the record reveals the following evidence. At the July 12, 2010 public hearing, Christopher Michos explained that " [t]here has ... been a concern [regarding] the discussion of an amphitheater and certainly a condition I would like the board to consider, is ... if there is going to be outside or amplification of sound, should there be conditions for the use of the amphitheater to make sure we have the privacy and the quiet in the neighborhood that we usually have." (SROR, Exh. 58, PZC Transcript 7/12/10, p. 45.) At the August 9, 2010 public hearing, Attorney Fallon stated that " [the plaintiff] does not expect to generate significant exterior sound with any regularity whatsoever. From time to time there will be events held outdoors involving invited speakers or music with amplification. We intend to be a good neighbor and expect to be held to the same standards as apply generally to churches and houses of worship, and will of course obey all local town regulations and Connecticut statutes with regard to any noise emanating from the outside." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 15.)
Attorney Bologna, at the August 9, 2010 hearing, stated that his clients " have a specific concern with amplified sound. As you are aware, there is this outdoor area, outside the lounge ... We would ask that no amplified sound or music be made a condition of approval. [The] amphitheater, light structure, outside the premises seems to be designed or made for use for presentations that would take place in such a way that would affect the rest of the neighborhood." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 18.)
As noted previously, Attorney Fallon stated at the August 9, 2010 hearing, and further explained: " We are a church and a house of worship. We do not want to be the only house of worship in Easton that cannot have an outdoor picnic that might have amplified music. Or cannot have a summer evening like this, a concert, that might have some religious aspects to the music and we do not want to be held to that standard. We respect our neighbors. Everything we have done in designing this facility, and we commit to this board and this commission and this town and this neighborhood, you know, the whole thing that we are about, is going to ensure that we are going to be constructive and positive with our neighbors but we would not want to see a condition of approval unique to us imposed on a thirty-acre property that would prevent us at anytime from having an amplified music opportunity on the campus. With respect with noise ordinances, state and local regulations, I think it is pretty clear from who we are ... that we are not going to be abusive of this. We are not in the concert business. But we would just like to have the same rights of other churches and houses of worship in that regard." (SROR, Exh. 59, PZC Transcript 8/9/10, p. 21.)
As previously noted, at the August 23, 2010 commission meeting, in response to a fellow commissioner's inquiry about the scope and number of people outside the structure, the commission's chairman stated: " The basic concept is, we are asking them to move activities indoors. There are midnight masses, or whatever else might go on, and we are not saying you cannot do those things, but we want to limit the outside activities, lighting, amplification, we want to move those activities indoors." (SROR, Exh. 60, PZC Transcript 8/23/10, p. 9.) Another commissioner stated: " Right ... limit the activities ... it is rather general, it could be a concert, it could be some sort of music, I imagine, with 300 people, which could be very disruptive to the neighborhood." (Id . ) The commission's chairman further explained that " if they are at 9:00 p.m. and the outdoor activities are objectionable, what we have done in the past, this forum can hear an objection to what is going on, on the property. And, we can go to the extent of putting noise monitoring devices to determine what is going on and what is fair and reasonable. What is objectionable. Frankly, our noise regulations are somewhat vague. I think it is safe to say. But, we have opened this commission as a forum in which to view complaints ... so, I think we have covered it." ( Id. ) Another commissioner added that " this is exactly, but maybe not that word, verbatim, but this is the same spirit and intent as with the ECC with their concerts and gazebo." (Id. ).
Based on the record, it is unclear what level of noise is permitted by this condition. Indeed, the commission itself admitted that its noise regulations are vague. Thus, the court finds this condition of approval " too vague [and] not clearly articulated" because it is not " expressed in sufficiently definite terms to enable the [plaintiff], adjacent landowners, and all interested parties to know what is required of the [plaintiff]." Anatra v. Zoning Board of Appeals, supra, 127 Conn.App. at 135-36. Accordingly, as to the sixth condition, the appeal is sustained for vagueness.
D
RLUIPA
Next, the court will address the plaintiff's contention that the commission violated RLUIPA in rendering its decision. The plaintiff argues that the contested conditions violate the Free Exercise Clause of the First Amendment and RLUIPA, 114 Stat. 803, 42 U.S.C. § 2000cc et seq. Specifically, the plaintiff argues in its brief that the conditions are inconsistent with the strictures of 42 U.S.C. § 2000cc §§ (a)(1)(A)-(B). In addition, the plaintiff argues in the complaint that the conditions " as imposed ... [are also] [in]consistent with past actions of the [commission] with regard to the approval of other churches and places of worship within the town of Easton." See 42 U.S.C. § 2000cc § (b)(2), (3)(A)-(B). In response, the commission counters in its brief that the plaintiff's " speculation" that the conditions " could inhibit" its rights under RLUIPA is " unreasonable and not supported by anything in the record." Moreover, its discussion of the issues " offers no support and minimal analysis." Finally, the defendant relies on the holding of Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 406-407, for the proposition that it could " properly apply traditional standards to a variety of special permit uses in a uniform and consistent manner." The parties revisited these general arguments at trial.
42 U.S.C.2000cc § 2 provides: Protection of Land Use as Religious Exercise
RLUIPA is a federal civil rights statute with roots in the Free Exercise clause of the First Amendment. The statute cannot be properly understood or applied apart from free exercise jurisprudence or the historic context in which it was enacted. Accordingly, the court's analysis will begin with an explanation of the free exercise clause and those events which led to the enactment of RLUIPA, followed by an explanation of the relevant provisions of RLUIPA, and finally a determination of its applicability to the present case.
The free exercise clause provides: " Congress shall make no law ... prohibiting the free exercise" of religion. U.S. Const., amend. 1. The clause applies to the states by incorporation into the Fourteenth Amendment; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); and it prohibits federal, state and local governments from denying benefits to, or imposing burdens on, people as a result of their religious beliefs. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
In Sherbert v. Verner, supra, 374 U.S. at 398, the Supreme Court held that " a State could not condition the availability of unemployment insurance on an individual's willingness to forgo conduct required by his religion." Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 876, 110 S.Ct. 1595, 108 L.Ed. 876 (1990). In so holding, the court explained: " The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs ... Government may neither compel affirmation of a repugnant belief ... nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities ... [Nevertheless] even when [a religious] action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sherbert v. Verner, supra, 374 U.S. at 402-403. In reaching its decision, the court applied a strict scrutiny balancing test. " Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest." Employment Division, Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S. at 883.
Fewer than twenty years later, in Employment Division, Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S. at 872, the court overruled the Sherbert test, at least as applied to state criminal statutes. The court explained: " [T]he exercise of religion often involves not only belief and profession but the performance of (or abstention from) physical acts [including, inter alia] assembling with others for a worship service ..." Id., at 877. Nevertheless, " [w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary ... the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religious prescribes (or proscribes)." (Citations omitted; internal quotation marks omitted .) Id., at 878-79. In declining to apply the Sherbert test to a state statute proscribing sacramental peyote use, the court explained that the test had arisen and developed in the employment compensation context, which " lent itself to individualized governmental assessment of the reasons for the relevant conduct." Id., at 884. Specifically, " a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment." Id. The court concluded: " Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law." Id ., at 884. Of particular concern to the court was the compelling interest element of the test because " if ‘ compelling interest’ really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test." Id., at 888. The court concluded that " the sounder approach, and the approach in accord with the vast majority of [its] precedents, [was] to hold the [ Sherbert ] test inapplicable to [challenges of an across-the-board criminal prohibition on a particular form of conduct]." Id., at 885.
The court did not completely close the door to free exercise exemptions, however. It concluded: " Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well ... But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." Employment Division, Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S., at 890.
Three years later, in Church of the Lukumi Babalu Aya, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), the court confirmed the proposition that " a law that is neutral and of general applicability need not be justified by a compelling governmental interest even the law has the incidental effect of burdening a particular religious practice. " (Emphasis added.) Id., at 531. It explained: " Neutrality and general applicability are interrelated, and ... failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Id., at 531-32. In Church of the Lukumi Babalu Aya, the court invalidated three city ordinances after it found that they were enacted with the specific purpose of targeting a particular religious sect, and therefore did not meet the " general applicability" and " neutrality" standards, and thus were subject to strict scrutiny. Id., at 535.
In sum, Sherbert originally seemed to provide for strict scrutiny in nearly every case where a religious practice was burdened. The Supreme Court determined, however, that this was problematic because it would wreak havoc on our system by requiring endless religious exemptions. Thus, in Smith and its progeny, the court created a threshold element: a law must not be neutral and generally applicable before courts could apply strict scrutiny. Any law that was neutral and generally applicable would not be subject to strict scrutiny.
In direct response to Smith, Congress enacted legislation so that any law placing a " substantial burden" on a religious practice would have to meet strict scrutiny. Its goal was to go further than the First Amendment required. The Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq., " prohibits ‘ [g]overnment’ from ‘ substantially burden[ing]’ a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden ‘ (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ § 2000bb-l ... The Act's universal coverage is confirmed in § 2000bb-3(a), under which RFRA ‘ applies to all Federal and State law, and the implementation of that law ...’ " City of Boerne v. Flores, 521 U.S. 507, 515-16, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). In a nutshell, RFRA subjected all government-imposed substantial burdens on religious exercise to strict scrutiny.
RFRA was soon invalidated, however, as applied to the states. In City of Boerne v. Flores, supra, 521 U.S. at 507, " [a] decision by local zoning authorities to deny a church a building permit was challenged under [RFRA]. The case call[ed] into question the authority of Congress to enact RFRA. [The court] conclude[d] the statute exceed[ed] Congress' power." Id., at 511.
The court reasoned: " Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ... The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the ‘ powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.’ Marbury v. Madison, 1 Cranch 137, 176 (1803) ... Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA's provisions, those which impose its requirements on the States ... The Fourteenth Amendment provides, in relevant part:
" ‘ Section 1 ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ...
" ‘ Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’ " (Citations omitted.) Id., at 516-17.
The parties in Boerne disagreed specifically over " whether RFRA [was] a proper exercise of Congress' § 5 power ‘ to enforce’ by ‘ appropriate legislation’ the constitutional guarantee that no State shall deprive any person of ‘ life, liberty, or property, without due process of law’ nor deny any person ‘ equal protection of the laws.’ " Id., at 517. In concluding that " [t]he Fourteenth Amendment's history confirms the remedial, rather than substantive, nature of the Enforcement Clause"; id., at 520; the court relied first on the legislative history of the amendment, beginning in 1866. It found that the first draft of the amendment, known as the Bingham proposal, was rejected largely because it " gave Congress too much legislative power at the expense of the existing constitutional structure." Id., at 520. " Under [a] revised Amendment, Congress' power was no longer plenary but remedial ... allow[ing] Congress to correct the unjust legislation of the States." (Citations omitted; internal quotation marks omitted.) Id., at 522. Accordingly, " [t]he Enforcement Clause ... [does] not authorize Congress to pass ‘ general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing ...’ " (Internal quotation marks omitted.) Id., at 525. That is to say " [t]he constitutional propriety of [legislation adopted under the Enforcement Clause] must be judged with reference to the historical experience ... it reflects." Id.
The court explained that " [w]hile preventative rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved ... Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." (Citation omitted.) Id., at 530. With regard to the controversy before it, the court found that " RFRA's legislative record lack[ed] examples of modern instances of generally applicable laws passed because of religious bigotry." (Emphasis added.) Id. Specifically, the court determined that " the emphasis of the hearings was on laws of general applicability which place[ed] incidental burdens on religion" and that " Congress' concern was with the incidental burdens imposed, not the object or purpose of the [states' underlying] legislation." (Citations omitted; internal quotation marks omitted.) Id., at 530-31. Based on the record, the court found RFRA " so out of proportion to a supposed remedial or preventative object that it [could not] be understood as responsive to, or designed to prevent, unconstitutional behavior. It appear [ed], instead, to attempt a substantive change in constitutional protections." Id., at 532. In other words, it exceeded the requirements of the First Amendment without sufficient justification. In addition, " [i]ts reach [across jurisdictions] and scope [as to any law] ... distinguish[ed] it from other measures passed under Congress' [E]nforcement [P]ower ..." Id. Moreover, " [t]he stringent [strict scrutiny] test RFRA demand[ed] of state laws reflect[ed] a lack of proportionality ... between the means adopted and the legitimate end to be achieved." Id., at 533. The court found that by this standard, " [l]aws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise." Id., at 534. Finally, the " least restrictive means requirement [employed in RFRA] ... was not used in the pre- Smith jurisprudence RFRA purported to codify ... [indicating] that the legislation [was] broader than ... appropriate if [its] goal [was] to prevent and remedy constitutional violations." Id., at 535. Accordingly, the court invalidated the Act.
Several years later, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), the court made clear in a footnote that Smith only " held the application [of RFRA] to States to be beyond Congress' legislative authority under § 5 of the 14th Amendment" and, thus, RFRA was still legally valid and applicable as to the Federal Government. (Emphasis added.) Id., at 424 n. 1. In other words, Smith stands for the proposition that RFRA does not run afoul of Congress' constitutional limitations as to the federal government even though it subjects neutrally and generally applicable (federal) laws to strict scrutiny when they impose substantial burdens on religious exercise. Accordingly, the court applied RFRA to the Controlled Substances Act, a federal statute which barred use of a hallucinogenic tea that was sacramentally used by a religious sect with origins in the Amazon Rainforest. Id., at 423. Both sides agreed that the ban constituted a substantial burden to the religious exercise of the sect and the court, therefore, applied strict scrutiny to its application and ultimately granted an exception. Id., at 439.
The significance of applying strict scrutiny to free exercise-type claims is exemplified in O Centro. Whereas, in Smith, the free exercise clause did not require a judicial exemption for Native American use of peyote, in O Centro, RFRA did require an exemption for sect use of hallucinogenic tea. One commentator has written: " [T]he O Centro decision may be very important. So long as RFRA stands, and the O Centro unanimous decision is not reversed, the federal judiciary will have to determine whether the persons who claim the benefit of RFRA, and whom the federal government does not wish to accommodate, sincerely believe in religious principles that would be burdened if they do not receive an exemption from an otherwise religiously neutral law. In such cases, the federal judges will face the same problems in determining which beliefs qualify as religious, and which persons who claim an exemption are sincere in their religious beliefs, that courts faced when the Supreme Court used the [ Sherbert ] balancing test under the free exercise clause between 1963 and 1990." (Emphasis added.) J. Nowak & R. Rotunda, Constitutional Law (8th Ed.2010) § 17.6, p. 1636.
In 2000, Congress tried again to legislatively expand the First Amendment protections states were required to afford their citizens. In response to Boerne, it unanimously passed RLUIPA to " provide protection for houses of worship and other religious assemblies from restrictive land use regulation that often prevents the practice of faith ... [and allow] institutionalized persons to exercise their religion to the extent that it does not undermine the security, discipline, and order of their institutions." 146 Cong.Rec. S6687 (daily ed. Jul. 13, 2000) (statement of Sen. Hatch). RLUIPA was sponsored by, inter alia, Senators Hatch, Kennedy, Daschle, Lieberman and Schumer; 146 Cong. Rec. E1563 (daily ed. Sep. 22, 2000) (statement of Rep. Canady); and supported by over fifty diverse civil rights and religious groups, including the American Civil Liberties Union and the Christian Legal Society. 146 Cong. Rec. S6688 (daily ed. Jul. 13, 2000) (statement of Sen. Kennedy).
" Mindful of the need for legislative findings of unconstitutional behavior, Congress held hearings over the course of three years— including three hearings before the Senate Committee on the Judiciary and six hearings before the House Subcommittee on the Constitution— to determine the scope of religious discrimination throughout American society ... In analyzing the evidence, Congress determined that land use decision making processes are particularly susceptible to religious discrimination because land use regulations lack objective and generally applicable standards, leaving zoning officials with ‘ virtually unlimited discretion in granting or denying permits for land use and in other aspects of implementing zoning laws.’ " A. Ostrow, " Judicial Review of Local Land Use Decisions: Lesson from RLUIPA, " 31 Harv.J.L. & Pub. Pol'y 717, 740-42 (2008).
At a hearing before the Senate, Senator Hatch stated: " At the core of religious freedom is the ability for assemblies to gather and worship together ... The land use section of [RLUIPA] prohibits discrimination against religious assemblies and institutions ... The section also prohibits unreasonable limits on religious assemblies and institutions and requires that land use regulations that substantially burden the exercise of religion be justified by a compelling governmental interest." 146 Cong. Rec. S6688 (daily ed. Jul. 13, 2000). " RLUIPA also prohibits government from: (1) treating religious land uses on ‘ less than equal terms' with a nonreligious land use; (2) ‘ discriminating against’ an assembly or institution on the basis of religious or religious denomination; (3) totally excluding religious assemblies; and (4) unreasonably limiting religious assemblies, institutions or structures." A. Weinstein, " The Effect of RLUIPA's Land Use Provisions on Local Governments, " 39 Fordham Urb. L.J. 1221, 1231 (2012), 1231, citing §§ 2000cc(b)(1)-(3).
The " general rule" of RLUIPA's land use section " restores strict scrutiny to land use regulations that impose a substantial burden on religious exercise, but does not attempt to define the term ‘ substantial burden.’ The ‘ general rule’ applies where the substantial burden: (1) is imposed in connection with a federally-funded activity; (2) affects interstate commerce; or (3) is imposed for the implementation or imposition of a land use regulation in the context of a scheme whereby government makes ‘ individualized assessments' regarding the property involved." A. Weinstein, supra, 39 Fordham Urb. L.J. 1230-31, citing §§ 2000cc(a)(2)(A)-(C) and Fortress Bible Church v. Feiner, 734 F.Supp.2d 409, 497-99 (S.D.N.Y.2010) (discussing Commerce Clause and individualized assessment jurisdictional elements). This is because, in enacting RLUIPA, Congress relied not only on its Fourteenth Amendment remedial power, but also on the Spending and Commerce clauses. 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (Joint statement of Sen. Hatch and Sen. Kennedy). Specifically, in their joint statement, Senators Hatch and Kennedy explained: " The Spending Clause provisions are modeled directly on similar provisions in other civil rights laws. Congressional power to attach germane conditions to federal spending has long been upheld. South Dakota v. Dole, 483 U.S. 203 (1997); Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ... The Commerce Clause provisions require proof of a ‘ jurisdictional element which would ensure, through case-by-case inquiry, that the [burden on religious exercise] in question affects interstate commerce.’ United States v. Lopez, 514 U.S. 549, 561 (1995) ... The jurisdictional element in this bill is that, in each case, the burden on religious exercise, or removal of that burden, will affect interstate commerce ... The land use sections of the bill have a third constitutional base: they enforce the Free Exercise and Free Speech Clauses as interpreted by the Supreme Court. Congress may act to enforce the Constitution when it has ‘ reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional.’ City of Boerne v. Flores, 521 U.S. 507, 532 (1997)." Id.
RLUIPA " does not include a definition of the term ‘ substantial burden’ because it is not the intent of [the statute] to create a new standard for the definition of ‘ substantial burden’ on religious exercise. Instead, that term as used in the Act should be interpreted by reference to Supreme Court jurisprudence." 146 Cong. Rec. S7776 (daily ed. July 27, 2000) (Joint Statement of Sen. Hatch and Sen. Kennedy). In addition, " [a]lthough the Supreme Court has not explicitly provided a standard by which to distinguish between laws of general applicability and individualized assessments, the " general rule that emerges from the case law is that the determination of whether the governmental action is an ‘ individualized assessment’ depends on whether the decision was subjective in nature.' " (Emphasis in original.) A. Ostrow, supra, 31 Harv.J.L. & Pub. Pol'y 745, citing Westchester Day School v. Mamaroneck, 417 F.Supp.2d 477, 541-42 (S.D.N.Y.2006), aff'd, 504 F.3d 338 (2d Cir.2007). There is little agreement among the state and circuit courts regarding the proper interpretation of " individualized assessment" and " substantial burden." Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 406-407. Indeed, our Supreme Court and the Second Circuit Court of Appeals have set forth competing interpretations of the statute's applicability. Compare Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 401-419 with Westchester Day School v. Mamaroneck, supra, at 504 F.3d 350-53.
The Connecticut Supreme Court is not bound by the Second Circuit Court of Appeals. Dayner v. Archdiocese of Hartford, 301 Conn. 759, 783, 23 A.3d 1192 (2011). In this court, the holdings of the Connecticut Supreme Court are authoritative.
Finally, RLUIPA's text specifically addresses burdens of proof and judicial relief. Section 2000cc-2(a), entitled " Causes of action, " provides, in relevant part: " A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." (Emphasis added.) Section 2000cc-2(b), entitled " Burden of Persuasion" provides: " If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion." (Emphasis added.) In other words, " if the plaintiff produces a prima facie case alleging a violation of section 2000cc, the government has the burden of persuasion, except that the burden is on the plaintiff in claims under the Substantial Burden Provision [of § (a) ]." T. Raccuia, " RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases, " 80 Fordham L.Rev. 1853, 1866 (2012). Finally, § 2000cc-2(c) provides: " Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum."
In light of these provisions, it is no surprise that, as the commission has pointed out, the plaintiff's discussion of the issues " offers no support and minimal analysis." The court agrees. The plaintiff's arguments regarding RLUIPA are generally interspersed among other grounds asserted for its appeal under the state statutory scheme and, more importantly, the plaintiff has not met the required burdens set forth under § 2000cc-2(b) to obtain relief under the statute as interpreted by our Supreme Court in Cambodian Buddhist Society. Specifically, with regard to each condition, the plaintiff has not presented a prima facie case alleging violations of either §§ (a) or (b) of RLUIPA or established by factual and legal analysis, with regard to § (a), that the conditions imposed upon it constitute substantial burdens. It may well be that the plaintiff did so intentionally, with the intent to exercise § 2000cc-2(c) and seek relief under RLUIPA by presenting more fully its case in federal court, particularly in light of the differing analyses set forth by our Supreme Court in Cambodian Buddhist Society and by the Second Circuit Court of Appeals in Westchester Day School. Nevertheless, in the present case, the court can find no violation of RLUIPA.
Indeed, the plaintiff would not be the first to choose a federal forum over a state forum. See, e.g., J. Christoffersen, " Norwalk supports mosque after lawsuit, fed inquiry" (December 8, 2012), available at http://w ww.boston.com/news/local/connecticut/2012/12/08/ norwalk-supports-mosque-after-lawsuit-fed-inquiry/ KTJWXokQqbPAeG02agaiAP/story.html (last visited December 10, 2012).
IV
CONCLUSION
For the foregoing reasons, the plaintiff's appeal is sustained to the extent explained above and the case remanded back to the commission for further proceedings in accordance with this decision.
" 1. Provide a Conservation Easement over the 100-year flood plain area of the Mill River designed to protect the natural vegetation and ecology of the area as recommended on the adopted Town Plan of Conservation and Development. A limited trail easement may be included within the Conservation Easement as desired by the Prayer Center.
2. Activities conducted at the Prayer Center shall be limited to Prayer Center functions and other non-profit events sponsored by the Prayer Center.
3. The maximum attendance at each event shall be limited to 300 persons and not more than 30 staff or presenters.
4. All parking and loading on the site shall be limited to the spaces provided for such as shown on the site plan, and there shall be no parking off-site.
6. Outdoor activities at the amphitheater shall be without objectionable sound amplification; i.e. of low volume directed only toward the building. Outdoor activities shall not extend beyond 11:00pm." (ROR, Exh. 56.)
(a) Substantial Burdens.
(1) General rule.— No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application.— This subsection applies in any case in which
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or in formal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
(b) Discrimination and Exclusion.
(1) Equal terms.— No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution on less than equal terms with a nonreligious assembly or institution.
(2) Nondiscrimination.— No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits.— No government shall impose or implement a land use regulation that
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
" Land use regulation" is defined by 42 U.S.C. § 2000cc-5 (5) 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), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest."
Numerous examples of restrictions on religious liberty were presented to Congress. Just a few of these included: a Methodist church ordered to limit attendance at its services to seventy worshipers and shut down a meals program for the homeless; proposed limits on the operational hours and potential growth of various congregations; taxing religious institutions for the privilege of feeding the homeless; special permit and zoning denials; and the prohibition of house meetings, in particular one attended by an " 84 year old survivor of Auschwitz, a man who used to risk his life in the concentration camp whenever possible to gather together to pray." 146 Cong.Rec. S6689 (daily ed. Jul. 13, 2000) (statement of Sen. Kennedy).
" Congress further concluded that this highly discretionary context readily lends itself to religious discrimination ... [Accordingly, it] sought to prevent such discrimination by requiring courts to apply strict scrutiny review to local land use decisions that impose a substantial burden on religious exercise if such decisions are made through ‘ individualized assessments' of the proposed use of the property." A. Ostrow, supra, 31 Harv. J.L. & Pub. Pol'y 722-23.