Opinion
No. CV 06 4008077
January 26, 2007
MEMORANDUM OF DECISION
I. Background
The plaintiff, Cross Street, LLC (Cross Street), appeals from a decision of the defendant, the Zoning Board of Appeals of the Town of Westport (ZBA) denying the Cross Street application for certain variances. Cross Street is the owner of property known as 24 Ludlow Road in Westport which is 51,674 square feet in size and located in an area zoned one acre residential. Its present use is non-conforming because it is the site of multi-family residential units. Cross Street seeks variances to allow the construction of an orthodox synagogue on its property after demolishing the existing structures. Cross Street's application for variances was denied by the ZBA and this appeal followed. The ZBA's denial was based on a finding that "no hardship was proven." Return of Record (ROR), Item 68.
II. Jurisdiction
The pleading and proving of aggrievement by the plaintiff is a prerequisite to the jurisdiction of the Superior Court over zoning appeals. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996). Pursuant to General Statutes § 8-8(a)(1) an aggrieved person includes any person owning land within one hundred feet of the land involved in a decision of a zoning board of appeals. It is uncontested that Cross Street is the record owner of 24 Ludlow Road, the property for which variances were sought from and were rejected by the ZBA. See Exhibit 1 (deed to 24 Ludlow Street.) The court finds that it has jurisdiction over this appeal.
III. Facts
The Cross Street application for variances (ROR, Item 1) indicated that parking requirements for a house of worship presented very difficult problems on a residential lot and sought variances of Section 12-6 of the Westport Zoning Regulations (total coverage should not exceed twenty-five percent of lot area) of Section 12-11 (off-street parking in accordance with Section 34 of the Supplementary Regulations) and Section 34-11.12 (parking reserve regulations). Id.
Section 34 of the Westport Zoning Regulations governs off-street parking. The chart accompanying Section 34-5 states that for places of worship the minimum required parking spaces are:
the greater of (a) one space for each 3 occupants of the sanctuary as determined by the Fire Marshall, or; (b) one space for each 3 occupants of all rooms, other than the sanctuary, used for social functions, as determined by the Fire Marshall
It is undisputed that using the above calculations the Fire Marshall determined 58 parking spaces would be required for the house of worship proposed by the plaintiff. ROR, Item 30, p. 4. This was based on plans showing a social hail capable of holding 175 persons. It is also undisputed that the total Coverage of the lot (i.e. total square footage of buildings and paved areas divided by the square footage of the entire lot) with 58 parking spaces would be 48.22%. Id., p. 5.
As placed before the ZBA the plan of Cross Street (ROR, Item 71) sought to comply fully with the 25% coverage limitation of Section 12-6 of the Zoning Regulations by proposing 18 off-street parking places at the synagogue. Therefore, this plan required a variance from the 58 parking place requirement and a variance from the requirement of Section 34-11.12 that only 25% of the required spaces be reserved. Under the Cross Street plan 40 spaces, or 68% would be in reserve.
IV. Applicable Legal Standards
General Statutes § 8-6(a)(3) authorizes a zoning board of appeals "to vary" the application of zoning regulations when:
owing to conditions especially affecting [a parcel of land] but not affecting generally the district in which it is situated, a literal enforcement of such . . . regulations would result in exceptional difficulty or unusual hardship
. . .
The Connecticut Supreme Court has interpreted this statutory provision. To grant a variance strict adherence to a regulation must cause exceptional difficulty and extreme hardship and the variance cannot be substantially inconsistent with the comprehensive zoning plan for the town. Grillo v. Zoning Board of Appeals, 206 Conn. 362 (1988); see also Smith v. Zoning Board of Appeals, 174 Conn. 323 (1978); Francini v. Zoning Board of Appeals, 228 Conn. 785 (1994).
In Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995) the Supreme Court discusses hardship in the following language:
In order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance. Smith v. Zoning Board of Appeals, supra, 174 Conn. 327. The hardship must originate in the regulation or ordinance and arise from the application of the regulations or ordinance to the subject property. Pollard v. Zoning Board ofAppeals, 186 Conn. 32, 39-40, (1982); Whittaker v. Zoning Board of Appeals, supra, 179 Conn. 658. Financial considerations are relevant only if the application of the regulation or ordinance practically destroys the value of the property for any use to which it may be put and the regulation or ordinance as applied to the subject property bears little relationship of the purposes of the zoning plan. Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369; Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90, 255 A.2d 841 (1969).
Id., 209.
The standard of review on an appeal from a decision to grant or deny a variance is whether the actions of the zoning board of appeals was arbitrary, illegal or an abuse of discretion. Id., 205-06. The Superior Court is not to substitute its own judgment for that of the local board and that board's decision should not be disturbed when the board's honest judgment has been reasonably and fairly exercised after a full hearing of the issues. Id., 206. The burden of proving that the ZBA acted improperly is on the plaintiff, Francini v. Zoning Board of Appeals, supra.
V. Discussion
Cross Street contends that it proposed a plan containing 18 parking spaces because (1) the plan complied with the coverage regulation of 25% or less and because that number of spaces was sufficient to meet the actual needs of the proposed user, an orthodox Jewish congregation Beit Chaverim. It is contended that orthodox congregations, because of their disciplines and practices are "almost always small," in this case about 70 families, (Transcript, November 22, 2005 hearing, 34) and that they walk to services. Pl. Brief, 3.
Cross Street further argues that the first prong of the legal standard for granting variances, i.e. no substantial effect on the comprehensive zoning plan, is met because the zoning regulations permit houses of worship in this area. The second prong, a showing of hardship, is met because real property costs in Westport are such that to comply with the parking requirements, two residential lots would have to be purchased at a probable cost of $2 million, a prohibitive cost for the small congregation of Beit Chaverim.
Finally, Cross Street asserts that the ZBA decision places an unenforceable burden on the right to build a structure for public worship as guaranteed by Article Seventh of the Connecticut Constitution, General Statutes § 52-571b, and 42 U.S.C. § 2000 cc. In short, the argument is that the ZBA failed to balance properly the right to build a synagogue with the public interests protected by zoning regulations. By ignoring the very limited actual need for the number of parking spaces required by the regulations, Cross Street argues that the ZBA's decision is a "blind application" of the regulations that improperly restricts Beit Chaverim's rights to build a synagogue.
In contrast, the ZBA contends that its determination that Cross Street failed in its burden of establishing the existence of hardship is a proper exercise of its judgment based on the facts presented, and that the failure to grant the requested variance is not an improper restriction on religious freedom.
At the outset, this court does not accept, without additional analysis, Cross Street's assumption that the variances requested have no substantial effect on the overall zoning plan because a house of worship is allowed as a special permitted use in the zone. Nevertheless, the court will not base its decision on this point because neither the proceedings before the ZBA, nor the parties' arguments before the court, focused on this issue.
The specific reason stated by the ZBA for denying the variance request was that hardship had not been proven. ROR, Item 68. The court concludes that there is sufficient evidence in the record to find the ZBA's decision on that ground was not illegal, arbitrary, or an abuse of discretion. To begin with, there is no evidence of a specific condition that affects 24 Ludlow Street but not other properties in the same area, and which creates a difficulty or hardship as required by statute. Cross Street has recognized that its claimed hardship is not a hardship "in the traditional sense." Tr. November 22, 2005, 26. The claimed hardship is the purported cost of finding a location for the Beit Chaverim synagogue where the congregation can walk to services. The problem with this claimed hardship from Cross Street's perspective is that it is not a condition related to the land, but rather a financial constraint. As a general rule, financial considerations are not considered a hardship in land use cases. See Bloom v. Zoning Board of Appeals, supra; Grillo v. Zoning Board of Appeals, supra; Garibaldi v. Zoning Board of Appeals, 163 Conn. 235 (1972). Furthermore, there was evidence before the ZBA that Beit Chaverim congregation presently had a place of worship and was aware of other locations in Westport that might be available. Tr. December 13, 2005, 49 passim. While financial considerations have been discussed by reviewing courts on some occasions, these cases have ultimately been decided on traditional grounds. The cases cited by Cross Street to support a broader concept of hardship are not persuasive. In Collins Group v. Zoning Board of Appeals, 78 Conn.App. 561 (2003), the subject of variances was hardly discussed by the Appellate Court. In Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446 (2000) the Appellate Court reversed the trial court and upheld a zoning board of appeals decision that hardship occurred because of the "peculiar narrowness and topography" of the property. Id., 453; see also Vine v. Zoning Board of Appeals, 93 Conn.App. 1, n. 14, cert. granted, 277 Conn. 918 (2006) (emphasizing the physical characteristics of the property as the basis for the Giarrantano decision).
There is a conflict of authority whether a reviewing court should search the administrative record for grounds to sustain a zoning board of appeals' other than the stated reason. Robert Fuller, 9A Connecticut Land Use Law and Practice, § 33.16, p. 258 (2007.) A search of this record reveals more than sufficient basis to deny the requested variance on safety and public welfare grounds. Ludlow Road is classified as a minor street by Westort, and is approximately 20 feet wide. There was considerable expressed concern about the effect of overflow parking from the synagogue and increased traffic on that street. See comments of Westport Police Department (ROR, Item 39) and neighbors (ROR, Items 40-54). The record also shows clearly that Cross Street's claim that the Beit Chaverim Synagogue only needed 18 parking spaces was not proven. Indeed the congregation's rabbi stated at the ZBA hearing that although a majority of congregation members do not attend regular Saturday services, 70-75% of those attending drive to the synagogue. Tr. December 13, 2005, 37 (Tape 1197). Rabbi Strauchler also stated he hoped the congregation would grow. Id. Beit Chaverim's website indicates 125 families as members, not 70 as indicated by Rabbi Strauchler. e.g. ROR, Item 45. Rabbi Strauchler also indicated the likelihood of about ten larger gatherings each year such as High Holiday services and bar and bat mitzvahs. Based on the foregoing, there was a substantial basis for denying the variance on public safety grounds.
The court also determines that the ZBA decision does not flout any constitutional or legislative guarantees respecting the free exercise of religion. Cross Street correctly concedes that religious institutions are not exempt from the application of zoning regulations. Cross Street has cited The Religious Land Use and Institutionalized Persons Act, of 2000, 42 U.S.C. § 2000 cc (RLUIPA) which forbids a government agency from imposing or implementing a land use regulation
that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution [unless the government can show that such burden] (A) is in furtherance of a compelling governmental interest and (B) is the least restrictive means of furthering that . . . intent
In Westchester Day School v. Village of Mamaroneck, 386 F.3d 183 (2d Cir. 2004) a local planning board denied a permit application by the plaintiff school for new construction and renovations designed to add facilities for both religious and secular purposes. The denial was based in part on traffic concerns and inadequate parking. The Second Circuit reversed a grant of summary judgment for the school on the grounds of the existence of disputed facts. In its opinion the Second Circuit cautioned that on remand to the District Court the proper construction of RLUIPA meant a course of neutrality, and that while government could take positive steps to protect the free exercise of religion, "it must avoid going so far in this goal so as to adopt a preference for one religion or for religion generally." Id., 189, 190. The court also cast considerable doubt that RLUIPA should be interpreted so as to permit a government board to approve an application by a religious organization and deny an identical application by a secular organization. Id. As a Superior Court has said a religious institution is less likely to have suffered a substantial burden if its application was denied on grounds that would have been applied to a secular institution's identical application. Cambodian Buddhist Society of Connecticut v. Newtown Planning and Zoning Commission, Superior Court, judicial district of Danbury, CV 03 0350572 (November 18, 2005, Frankel, J.) [ 40 Conn. L. Rptr. 410].
The Connecticut Religious Freedom Act, General Statutes § 52-571b (RFA) prohibits a state or local authority from placing a "burden [on] a person's exercise of religion." The Appellate Court in First Church of Christ v. Historic District Commission, 55 Conn.App. 59, cert. denied 251 Conn. 923 (1999), a RFA case, adopted the opinion of the Superior Court in that case reported at 46 Conn.Sup. 90 (1998), which said churches and religious organizations can be regulated under the police power as long as the regulation is religiously neutral and for secular purposes. 46 Conn.Sup. 100.
On the basis of the above interpretations, the court concludes that the ZBA's actions did not violate either RLUIPA or RFA. The zoning regulations are facially neutral and by their terms apply to all properties in the same zone as 24 Ludlow Road. Cross Street presented no evidence that the ZBA denied the variance application on any pretext, or applied the regulations in any un-neutral manner.
VI. Conclusion
For the reasons stated above, the appeal of Cross Street, LLC is denied.