Opposition Brief — Grace Community Church v. Town of Bethel

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No. 93-179 ' SEP 30 1893

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In The

Supreme Court of the United States

October Term, 1993

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GRACE COMMUNITY CHURCH,

Petitioner,

vs.

TOWN OF BETHEL AND BETHEL PLANNING

AND ZONING COMMISSION OF THE

TOWN OF BETHEL,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Appellate Court Of The

State Of Connecticut

¢

BRIEF OF THE RESPONDENTS

IN OPPOSITION

¢

STEPHEN C. GALLAGHER

GALLAGHER AND GALLAGHER

30 Main Street, Suite 201

Danbury, Connecticut 06810

(203) 792-0525

Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

~

TABLE OF CONTENTS

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INDEX TO APPENDIX

PETITIONER’S CLAIMS FOR DECLARATORY

AND INJUNCTIVE RELIEF ARE MOOT........

THE PROVISIONS OF THE BETHEL ZONING

REGULATIONS AS THEY AFFECTED THE PETI-

TIONER WERE NOT VIOLATIVE OF THE PETI-

TIONER’S RIGHTS UNDER THE FREE

EXERCISE, FREE SPEECH, FREE ASSEMBLY OR

FREEDOM OF ASSOCIATION PROVISIONS OF

TREE FRE PIVEN 605 veces ccc en ee suces

THE RULINGS OF THIS COURT CONCERNING

LIVE NUDE DANCING HAVE NO RELEVANCE

TU TERR Bose Gir TERR SADE onan ceca

THE BETHEL ZONING REGULATIONS AS

APPLIED TO THE PETITIONER DO NOT VIO-

LATE THE EQUAL PROTECTION CLAUSE ....

THE BETHEL ZONING REGULATIONS

REGARDING THE REQUIREMENT OF

CHURCHES TO OBTAIN A SPECIAL PERMIT

TO BUILD IN A RESIDENTIAL ZONE ARE NOT

VIOLATIVE OF THE PETITIONER’S RIGHTS

UNDGR THE COMSEIIUTIONN. .. 2.0.0.0 0eccers

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TABLE OF AUTHORITIES

Page

Cases:

Barberino Realty and Development Corporation v.

Planning and Zoning Commission, 222 Conn. 607

CEDSS) oven sod vaeenu hee eke ee een en ee 7

Christian Gospel Church, Inc. v. City and County of

San Francisco, 896 F.2d 122.1 (9th Cir. 1990) cert.

den. 498 US. 999, 111 SCE SOP (ieo). 2... 2... 11, 12

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, No. 91-948, June 11, 1993................. 11

Cleburne v. Cleburne Living Center, 473 U.S. 432 87

L-Ed.2d 313, 105 SAK. SOUP Cibeee vos wk cece wur ences 11

Husti v. Zuckerman Property Enterprise LTD, 199

Coan. S735 (i906) ..:0i550 ccnreneaemesarermeneses 10

Lamb’s Chapel v. Center Moriches Union School Dis-

trect, US. GUID. . xs e vwecscuneseaeneene es 11

Nicholson v. Connecticut Halfway House, Inc., 153

Conn. S67 C1966) ...:.0 ccswentweeas sear eek ee eane 7

Playtime Theaters v. City of Renton, 475 U.S. 41, 106

oCt. 925, OP Lib .2e Se CH ns cke sy thee ennn eee 9

Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101

o.Ct. 2176, GB L.BG.2e G7 (ERED, cic cccccanevacses 9

St. John’s Roman Catholic Church Corporation v. Dar-

ien, 149 Conn. 712, 184 A2d 42 (1962)............ 4,6

:

West Hartford Methodist Church v. Zoning Board of

Appeais, 143 Comm. 263. CISIG) sic cess as vkeccrdescses 6

Widmar v. Vincent, 454 U.S. 263 (1981).... .......... 11

lll

STATEMENT OF THE CASE

The Petitioner, GRACE COMMUNITY CHURCH,

(hereinafter the Church) is an evangelical protestant con-

gregation which owns a tract of land comprising 13.6

acres located at the intersection of Weed Road and Wal-

nut Hill in the Town of Bethel, Connecticut. The zone in

which the land is located is an R-40 residential zone. The

Bethel Zoning Regulations for that zone allow a one-

family residence on a plot of land containing a minimum

of 40,000 square feet, with a minimum width of 140 feet.

In addition, to specified permitted uses, mainly of a resi-

dential character, the Regulations allow several non-resi-

dential uses by Special Permit including a “Church,

parish hall, and parish housing, including a convent or

other similar residence for clergy.” (Bethel Zoning Regu-

lations §118-24B (2) lodged by Petitioner with clerk).

On July 10, 1990 the Petitioner submitted an applica-

tion to the Bethel Planning and Zoning Commission

(hereinafter the Commission) for a Special Permit to con-

struct a Church and associated buildings on its property.

The application was referred to several town officials and

agencies for their comments. A public hearing was sched-

uled for August 14, 1990 which was subsequently contin-

ued to September 4, 11, and 18, 1990 due to the amount of

public interest in the application.

On October 9, 1990 the Commission, at a regular

meeting and after extensive discussion, by a 4 to 3 vote,

denied the application.

From that decision, the Church brought an appeal to

the Superior Court For the Judicial District of Danbury,

1

sci teaieiia nee

Connecticut Grace Community Church v. Planning and Zon-

ing Commission and the Town of Bethel, et al. Docket #CV

90-0304616S (App. A). During the pendency of that

appeal, the Church commenced this case against the same

defendants seeking declaratory and injunctive relief and

damages. The two matters were tried together before

Judge Robert Fuller with the record in the first case being

entered in its entirety as evidence in this case.

In addition, other testimony concerning the Church,

its beliefs, activities and mission were offered into evi-

dence. The Church claimed and the testimony revealed

that the Church was a main line independent Protestant

Evangelical Church. The Church began around 1981, and

since 1985, has been attempting to locate a site and build

a church to house its members during worship and a

facility in which to carry on its various church related

activities. The Church presently uses a high school in

Brookfield, Connecticut, a town adjacent to Bethel, for its

Sunday worship and other activities. The Church stated it

would like to locate in Bethel because it believes it would

be centrally located in the region from which it draws

most of its members. About one-sixth of its members live

in Bethel, more than that from neighboring Danbury,

Connecticut, and the rest from the Danbury area The

proposed location on Weed Road and Walnut Hill in

Bethel is an old farm with no particular religious signifi-

cance. The desire of the Church to build and have its own

facility from the evidence presented, is no different from

that of other churches desiring the same.

Tt

On March 17, 1992 Judge Fuller sustained the

Church’s appeal of its denial for a special permit and

ordered the Appellant Commission to issue the Special

Permit for which the Church had applied (App. A). In

rendering his decision, Judge Fuller pointed out that

virtually the same application had been approved by the

Commission in 1988, although that decision was reversed

on appeal on procedural grounds (Mark C. Hehl v. Bethel

Planning and Zoning Commission CV 88-0295893S). He

found that absent a substantial change in circumstances,

the Commission was bound to reapprove the application.

Judge Fuller also found that the standard “that no condi-

tion will be created which will adversely affect traffic”

which the Commission relied on in denying the Applica-

tion, to be vague and an imprecise concept susceptible of

several interpretations and, therefore, not a valid basis

for denying the Special Permit. (App. A-21).

Subsequent to Judge Fuller’s ruling, the Commission

on April 14, 1992, issued to the Church the Special Permit

for which it applied. No appeal was taken by either party

from Judge Fuller’s decision and no appeal was taken

from the Commission’s issuance of the permit. The Peti-

tioner appealed the denial of its action for declaratory

relief and damages to the Connecticut Appellate Court.

In rejecting their appeal, the Appellate Court found

that the claim for injunctive and declaratory relief to be

clearly moot, the Defendant Commission having issued

the Plaintiff a special permit removing the basis for the

need for relief. The Court concluded that it had no juris-

diction for injunctive and declaratory relief. (Petitioner

Brief App. A-6).

In rejecting its claim for damages, the Court found

that past Connecticut Supreme Court decisions, espe-

cially that of St. John’s Roman Catholic Corporation v. Dar-

ien, 149 Conn. 712 (1962) supported the commission’s

position that the use of special permit procedures to

regulate the location of churches in residential zones was

a reasonable restriction and not violative of the Peti-

tioner’s right under the United States and Connecticut

Constitutions.

In its petition, the Petitioner asserts that if it wishes

to modify its building plans by adding, for example, a

classroom, it must start over again in seeking a new

special permit. (Petition For Writ of Certiorari P.5) Such a

statement is misleading at best. The Church can never

lose its Special Permit unless it fails to complete construc-

tion within the five years or extension thereof allowed by

the Zoning Regulations. If the Church later wishes to

expand its facilities, it would need only a modification of

its Special Permit. While the procedures for obtaining the

modification would be the same as for a new Special

Permit, the Church would run no risk of losing the Spe-

cial Permit it now holds.

ARGUMENT

1. THE PETITIONER’S CLAIMS FOR DECLARA-

TORY AND INJUNCTIVE RELIEF ARE MOOT.

The Petitioner has obtained through its administra-

tive appeal and the subsequent action of the Commission

that which it requested, the granting of a special permit

to build a church on the land it purchased for that very

reason. There is nothing more to be reasonably gained

from further litigation.

The Trial Court and the Connecticut Appellate Court

quite rightfully ruled that its claims for declaratory and

injunctive relief were moot. There is no present contro-

versy for which a Court should become involved. The

Appellate Court very carefully considered this question

and concluded that:

“In this case, the Plaintiff’s claim for injunctive

and declaratory relief clearly is moot. The Com-

mission, having issued the Plaintiff a special

permit, the Plaintiff is free to build a church on

its property in accordance with the approved

plans. The Plaintiff, therefore, has no present

need for relief that would limit the applicability

of the allegedly unconstitutional regulations.

The regulations no longer stand as an obstacle

to the Plaintiff’s existing plans to build a church.

In light of the mootness doctrine, therefore, we

have no jurisdiction to consider the Plaintiff's

claim for injunctive and declaratory relief.”

Grace Community Church v. Bethel, 30 Conn.

App. 765, 770 (1993). (Petitioner’s App. A-6).

In its petition for a Writ of Certiorari, the Petitioner

makes several attacks against Bethel’s zoning regulations

but nowhere does it address the question of the mootness

of its claims. Even if the regulations as constituted were

unconstitutional (a claim the Respondents vigorously

deny) the Petitioner has what it applied for — a special

permit to build a church at the location it selected.

Its attack on the zoning regulations and its claim of

possible future infringement are not matters properly

before the Court and its petition should accordingly be

denied.

2. THE PROVISIONS OF THE BETHEL ZONING

REGULATIONS AS THEY AFFECTED THE PETI-

TIONER WERE NOT VIOLATIVE OF THE PETI-

TIONER’S RIGHT UNDER THE FREE EXERCISE,

FREE ASSEMBLY OR FREEDOM OF ASSOCIA-

TION PROVISIONS OF THE FIRST AMENDMENT.

In its petition for a writ of certiorari the Petitioner

has launched a wholesale assault on the entire Bethel

Zoning ordinance. Such an assault completely ignores the

history of this case. The record shows that the only site

ever seriously considered by the Church in Bethel was

the site on Walnut Hill Road and Weed Road in a residen-

tial zone. During the course of the appeal from the

Administrative Decision denying the special permit there

was evidence that the church considered a site in a com-

mercial area which was rejected because the price was too

high. It was not until almost a year had elapsed after the

commencement of the administrative appeal that the Peti-

tioner commenced this present action seeking declara-

tory, injunctive and monetary relief.

Zoning cases do not exist in a vacuum. They exist

within a certain factual situation. In this case the contro-

versy actually revolved around the ability of the church

to construct a church in a residential zone where the local

zoning regulations required a special permit. The validity

of a requirement of a special permit for churches to

construct in residential zones has long been recognized in

Connecticut. St. John’s Roman Catholic Church v. Darien,

149 Conn. 712 (1956), West Hartford Methodist Church v.

Zoning Board of Appeals, 143 Conn. 263 (1956), Barberino

Realty and Development Corporation v. Planning and Zoning

Commission, 222 Conn. 607 (1992).

The Appellate Court in considering the Petitioner’s

claim for damages carefully considered the use of the

special permit requirement. The Court found the regula-

tions did not violate the Petitioner’s First Amendment

Rights and did not support an action for damages. This

holding is consistent with past Supreme Court decisions

in this area. There is nothing in the record of the present

case which would warrant overruling that opinion.

The Petitioner has attempted to divert attention from

the central issue of these cases, the location of its church

on Walnut Hill Road and Weed Road, by attacking the

Zoning ordinance in general. The Church is alleging that

because a church also required a special permit to build

in a commercial zone that this somehow impacted its

ability to build on the site it selected in a residential zone

on Walnut Hill Road. From there it wages a wholesale

assault on Bethel’s Zoning Regulations ignoring the fact

that it never seriously considered any other site than the

site for which it now has obtained a permit. In doing so it

is attempting to avoid the requirement ef having to

receive a special permit should it ever wish to expand the

limits of its church beyond the limits set forth in the

special permit which it now holds. No Court should ever

act based solely on the fears or apprehensions of the

party applying for it. Nicholson v. Connecticut Half-Way

House, Inc., 153 Conn. 507, 511 (1966).

3. THE RULINGS OF THIS COURT CONCERNING

LIVE NUDE DANCING HAVE NO RELEVANCE TO

THE ISSUES OF THIS CASE.

The Petitioner in raising this issue in the context of

this case have resorted to the use of a “red herring”. It

completely ignore the fact that a use such as live nude

dancing is no where allowed in the residential zone in

which it applied and ultimateiy received its permit to

build a church. As previously pointed out in this Brief, in

addition to residential uses the Bethel Zoning Regula-

tions, allows many other uses by Special Permit including

a Church'. None of those uses could remotely support a

request for the type of live nude dancing mentioned in

the Petitioner’s brief. In fact in this case religious uses are

permitted in the residential zones by Special Permit, but

live nude dancing is not.

Whatever validity that may attach to Petitioner’s

comparisons between cases involving live nude dancing

and the practice of religion are not applicable here. There

is no basis for the implication that vice is protected in

Bethel while the free exercise of religion is not. The crux

of this case is that the Petitioner chose tc locate its facility

in a residential zone. As is common in most towns, that

choice involved its receiving a Special Permit to build a

non-residential use. As is common with many proposals

for non-residential uses in a residential zone that choice

created a certain amount of opposition based on fears of

noise, congestion, traffic and lower property values. It

1 (A list of the 27 Special Permit uses allowed in a residen-

tial zone is set forth in §118-24 B of the Bethel Zoning Regula-

tions, a copy is lodged with the clerk).

was not denied permission by the Commission by a 4 to 3

vote because of the content of its religion, but because of

the adverse affect it would have on traffic. Ultimately,

however, the church received what it asked for, permis-

sion to build its church.

The Petitioner’s statement that Schad v. Borough of Mt.

Ephraim, 452 U.S. 61 and Playtime Theaters v. City of

Renton, 475 U.S. 41 stand for the proposition that live

nude dancing and adult movie theaters cannot be zoned

out of any community anywhere in the U.S. absent a

strictly scrutinized compelling state interest while

churches in many areas have no protection is absurd. In

the Schad case the Court struck down a municipal prohi-

bition against live nude dancing where the municipality

took the position that no live entertainment was allowed

in its commercial zone, a position that this Court stated

was simply not supported by the record. In the Renton

case this Court upheld a City Zoning regulation prohibit-

ing “Adult Theaters” within 1000 feet of a church school

or residential Zone even if located in a commercial zone.

Churches far from being discriminated against, are

allowed to be protected against intrusions from those

seamier forms of “entertainment” that too often dot our

towns and cities.

4. THE BETHEL ZONING REGULATIONS AS

APPLIED TO THE PETITIONER DO NOT VIO-

LATE THE EQUAL PROTECTION CLAUSE OF

THE UNITED STATES CONSTITUTION.

The Respondents vigorously contest that these ques-

tions can be properly raised within the context of this

10

case. It also asserts, however, that even if properly raised

the Zoning Ordinance violates none of the Petitioner’s

protected rights. The Appellate Court clearly found that

the Bethel Zoning Regulations were content neutral and

met the standards set forth in Hustsi v.Zuckerman Property

Enterprise, LTD, 199 Conn. 575, (1986).

A content-neutral zoning regulation that

restricts the permissible time, place and manner

of protective speech is constitutional under the

First Amendment if the regulation is designed

to serve a substantial governmental issue and

allows for reasonable alternative avenues of

communication. Id., 581 quoting Renton v. Play-

time Theaters, Inc., 475 U.S 41, 50, 106 S.Ct., 925,

89 L.Ed.2d 29 (1986).

The Petitioner is contending in effect that it has an

absolute right to build somewhere in Bethel and because

that right is governed by the Special Permit process that

the Zoning Ordinance is invalid. It ignores the fact that

over 90% of the land in Bethel is zoned so-as to allow the

building of churches. Supplemental Memorandum of Deci-

sion (Petitioner’s Brief App. C-6). The Petitioner relies

upon certain uses being allowed in one of the commercial

zones as a matter of right while churches require a special

permit. They continue to ignore the fact that they volun-

tarily purchased property in a residential zone with the

knowledge that they needed a special permit to build a

church. Their argument is one of comparing apples to

oranges.

11

The Cleburne!, Lamb’s Chapel?, Widmar? and Lukumi*

cases cited by the Petitioner as being in conflict with the

holding in this case are not even applicable to this case.

None of these cases dealt with the right of a town to

require special permits for churches to locate in residen-

tial zones. In the Lukumi case, for example, the Court

was faced with a City having enacted an ordinance speci-

fically designed to prohibit the religious practice of the

Church in question. There is no question but that the

Bethel Zoning Regulations are one of general appli-

cability and have been in effect for a substantial period of

time prior to the Church’s application.

The Petitioner’s quote from Christian Gospel Church,

Inc. v. City and County of San Francisco, 896 F.2d 1221 (9

Cir. 1990), cert. den. 498 U.S. 999, 111 S.Ct. 559, 112

L.Ed.2d 565 (1990). (Petitioner’s Brief P. 13) regarding the

dangers of local zoning authorities considering neighbor-

hood opposition to applications for special permits from

churches. The full quote from that case is as follows:

“Contrary to the arguments of the Church, neigh-

borhood opposition to the granting of a condi-

tional use permit is not unlawful and should be

considered by the Planning Commission.”

(emphasis ours)

4 Cleburne v. Cleburne Living Center, 473 U.S. 432, 87 L.Ed.

313, 105 S.Ct. 3249 (1985).

2 Lamb’s Chapel v. Center Moriches Union Free School District,

___ US. (1993).

3 Widmar v. Vincent, 454 U.S. 263 (1981).

4 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, No.

91-948 June 11, 1993.

12

Christian Gospel Church, Inc. v. City and County of San

Francisco, supra at 1225. The Petitioner seems to be advo-

cating a position that churches have an absolute right to

locate in residential zones and the residents have no

rights to voice their opinion. How they justify the denial

of the residents’ rights of free speech under the First

Amendment is missing from their brief.

5. THE BETHEL ZONING REGULATIONS REGARD-

ING THE REQUIREMENT OF CHURCHES TO

OBTAIN A SPECIAL PERMIT TO BUILD IN A

RESIDENTIAL ZONE ARE NOT VIOLATIVE OF

THE PETITIONER’S RIGHTS UNDER THE CON-

STITUTION.

The Petitioner’s arguments here are especially weak.

It alleges that the provisions are patently and probably

deliberately vague to give the Zoning Commission maxi-

mum power and discretion. It cites no evidence or

authority to support its position. A review of the record

in this matter will show that the Petitioner was never

discriminated against on the basis of its religious views.

Its application to build in a residential zone produced

opposition based solely on perceptions that the Church

would produce noise, traffic, congestion and lower prop-

erty values. The Commission, even when it denied the

Application, found that the Church had fulfilled two of

the required three criteria set forth in §118.21 H of the

Bethel Zoning Ordinances. Only on the basis of traffic

was the Church denied a permit. It is clear that there was

13

no constitutional violations in either the zoning regula-

tions or the way they were applied to the Church.

*

CONCLUSION

It is difficult for the Town of Bethel and its Planning

and Zoning Commission to perceive why the Church is

pursuing this appeal. It has received by virtue of the

Commission’s compliance with Judge Fuller’s order in.

the Administrative Appeal exactly what it applied for.

With respect to its building of a Church, there is no

present controversy. Its attack on the zoning regulations

began one year after it commenced its Administrative

appeal of the denial for a special appeal.

This action raises issues that are in no way germane

to its building a Church on the location it selected. It

seems to rest its case on the fact that at the time it applied

for its special permit, Churches also had to obtain special

permits in some commercial zones where they were also

permitted.

Its attack has been denied by the Connecticut Appel-

late Court and, in effect, by the Connecticut Supreme

Court which refused to grant certification from the deci-

sion. It has nowhere put forth any reasons why this Court

should disturb the underlying principle in this case that

the location of churches in residential zones may be regu-

lated by the use of Special Permit Regulations. These

types of regulations have been upheld not only by the

State of Connecticut, but by many other states including

cases cited by the Petitioner in it’s petition. It’s petition

14

for a Writ of Certiorari to review the decision of the

Connecticut Appellate Court should be denied.

Respectfully Submitted,

STEPHEN C. GALLAGHER

Counsel of Record

GALLAGHER AND GALLAGHER

30 Main Street

Suite 201

Danbury, Connecticut 06810

(203) 792-0525

ai

APPENDIX TABLE OF CONTENTS

Page

Memorandum of Decision Grace Community

Church v. Planning and Zoning Commission of The

Town of Bethel, et al, Docket No. 30 36, 16 -

March 17, 1992..........2ceeeer erence eeeeeces App. 1

— = a

App. 1

APPENDIX

NO. 30 36 16 SUPERIOR COURT

GRACE COMMUNITY JUDICIAL DISTRICT

CHURCH OF DANBURY

V. MARCH 17, 1992

PLANNING & ZONING

COMMISSION OF THE

TOWN OF BETHEL, ET

AL.

MEMORANDUM OF DECISION

This is an appeal from the denial of a special permit

to construct a church building in a residential zone,

which questions, among other issues, whether municipal

zoning laws can exclude churches as a permitted use

anywhere in the municipality and whether denial of a

special permit for a church violates the state and federal

constitutions. The plaintiff has also raised these constitu-

tional questions in a direct attack on the Bethel Zoning

Regulations in a separate action for a declaratory judg-

ment which was consolidated for trial with this appeal

(Grace Community Church v. Town of Bethel, et al., CV

91-0306994S).

The plaintiff, Grace Community Church, is an eccle-

siastical church corporation which is the owner of a par-

cel of about 13.6 acres on Walnut Hill Road in Bethel. The

property is in a residential area and in the R-40 zone.

Grace Community Church is a non-denominational

church with approximately 500 members but no church

building. It has been using Brookfield High School on

App. 2

Sundays for religious services and related church activ-

ities. It previously obtained approval from the Commis-

sion on July 26, 1988 for a special permit and a related

site plan for a church building on the 13.6 acre parcel.

That approval was overturned on procedural grounds

when abutting property owners brought a successful

appeal to the Superior Court.

The plaintiff then submitted another application to

the Commission for a special permit and site plan

approval which was substantially similar to the prior

application with a slightly smaller building. While the

site has frontage on both Walnut Hill Road and Weed

Road, the two proposed driveways for the site were both

off Walnut Hill Road. The proposed church building con-

tained about 19,000 square feet covering less than one-

half acre of the site. The Commission approved the site

plan on June 26, 1990. After the church filed the second

special permit application on July 10, 1990, the Commis-

sion scheduled a public hearing on the application for

August 14, 1990 and referred it to several town officials

and agencies for their review. Their reports back to the

Commission were favorable and any modifications or

conditions which were suggested were either of no con-

cern to the Commission, agreed to by the applicant or

were not relevant to the grounds of the Commission's

- decision. There was an extensive public hearing on

August 14, 1990, which was continued to September 4,

1990 and September 11, 1990. There was both support for

and opposition to the application. Both sides had traffic

experts who had prepared reports, discussed them, and

answered questions. On October 9, 1990, the Commission

extensively discussed the application and voted to deny it

App. 3

based on Sec. 118-21H(3) of the Bethel Zoning Regula-

tions, a general provision concerning traffic conditions.

That was the only concern of the Commission as reflected

in the minutes of its decision-making session, and the

only reason assigned for denial of the application. The

plaintiff appealed to this court within fifteen days after

publication of the agency’s decision as required by Sec.

8-8 of the General Statutes.

As the owner of the property which was the subject

of the special permit application, the plaintiff is

aggrieved by denial of its application. Winchester Woods

Associates v. Planning & Zoning Commission of Madison, 219

Conn. 303, 308, __A.2d___ (1991); Bossert Corporation v.

Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968).

This appeal raises both constitutional and noncon-

stitutional claims. Issues which were raised in the appeal

but not briefed by the plaintiff, such as a claim that denial

of the special permit is an unconstitutional taking of the

property, are considered abandoned. Shaw v. Planning

Commission of Southbury, 5 Conn. App. 520, 525, 500 A.2d

1338 (1985). Before constitutional claims can be consid-

ered, it must be determined whether the appeal can be

sustained on a nonconstitutional issue. Adolphson v. Zon-

ing Board of Appeals of Fairfield, 205 Conn. 703, 720, 535

A.2d 799 (1988); Maloney v. Pac, 183 Conn. 313, 324, 439

A.2d 349 (1981).

Most of the land in Bethel is in one of five single

family residence zones. Permitted used in the single fam-

ily residence zones include, among other uses, (1) one

single family dwelling per lot; (2) certain types of home

or professional offices and customary home occupations;

App. 4

(3) community recreation facilities, not including an

amusement park or privately owned facility; (4) farming,

dairy, truck or nursery gardening; (5) a public library; (6)

a public recreational facility operated by a governmental

unit; (7) a family day care home. Section 118-24A of the

Bethel Zoning Regulations. About thirty additional uses

are allowed by a special permit in residential zones.

Section 118-24B. They include the use applied for by the

plaintiff, a “church, parish hall and parish housing,

including a convent or other similar residence for clergy.”

Churches are allowed only with a special permit in all

residential zones and some commercial zones, which

comprise most of the land in the town. They are not a

permitted use in any zone. Other uses allowed in residen-

tial zones by special permit include clubs, community

center buildings, day care or nursery schools, fire sta-

tions, kennels, libraries or museums operated by non-

profit corporations, nursing or convalescent homes,

police stations, post offices, private golf, tennis or-swim

clubs, schools, town highway facilities and town halls.

Special permits require approval of a site plan which has

numerous specific requirements. Sections 118-24C and

118-34B. Other requirements for special permit approval

are contained in Sec. 118-21 which includes subsection H

which provides:

“Notwithstanding any other provision of this

regulation, no special permit shall be approved

unless the Planning & Zoning Commission shall

have found that:

(1) The proposed use will have no detrimental

effect on present and future dwellings in the

vicinity.

App. 5

(2) The proposed architecture, site plan and

landscaping are in harmony with the character

of the neighborhood.

(3) No conditions will be created which will

adversely affect traffic.”

The Commission members agreed at their meeting on

October 9, 1990 that the proposed church building and

site plan complied with subsections (1) and (2), namely,

that the proposed use did not have a detrimental effect on

the neighbor hood, and the proposed design of the build-

ing and site were consistent with the character of the

neighborhood. Their concern, and the reason for denial,

was based on traffic conditions and interpretation of sub-

section (3) of the Regulations.

1. Test on review of special permits.

When a land use agency, such as a zoning commis-

sion, acts upon a special permit, it is required to give

reasons for its action. Section 8-3c of the General Statutes.

When reasons are given, the Superior Court on appeal

determines whether the reasons assigned are reasonably

supported by the record and whether they are pertinent

to the considerations which the agency is required to

apply under the zoning regulations. DeMaria v. Planning

& Zoning Commission of Enfield, 159 Conn. 534, 541, 271

A.2d 105 (1970); Housatonic Terminal Corporation v. Plan-

ning & Zoning Board of Milford, 168 Conn. 304, 305, 306,

362 A.2d 1375 (1975); Daughters of St. Paul, Inc. v. Zoning

Board of Appeals of Trumbull, 17 Conn. App. 53, 56, 549

A.2d 1076 (1988). Where the Commission gives reasons

for its action, the court does not go behind the official

App. 6

collective statement of-the Commission to find other rea-

sons which might have influenced some or all of the

members of the Commission to reach a final collective

decision. DeMaria v. Planning & Zoning Commission of

Enfield, supra, 541. Where a special permit is denied, it is

sufficient if any one of the reasons given supports the

agency’s action. Housatonic Terminal Corporation v. Plan-

ning & Zoning Board of Milford, supra, 306. Where none of

the assigned reasons are valid, the court can sustain the

appeal and order the special permit granted, DeMaria v.

Planning & Zoning Commission of Enfield, supra, 541, 542,

at least where there is no other apparent problem of

noncompliance with the zoning regulations.

When acting upon a special permit, a zoning commis-

sion acts in an administrative capacity. Sheridan v. Plan-

ning Board of Stamford, 159 Conn. 1, 16, 266 A.2d 396

(1970). The Commission should determine whether (1)

the proposed use of the property is expressly permitted

under the zoning regulations, Weigel v. Planning & Zoning

Commission of Westport, 160 Conn. 239, 246, 278 A.2d 766

(1971), (2) whether the standards in the relevant zoning

regulations are satisfied; Farina v. Zoning Board of Appeals

of Trumbull, 157 Conn. 420, 422, 254 A.2d 492 (1969), and

(3) whether conditions necessary to protect public health,

safety, convenience and property values, as provided by

Sec. 8-2 of the General Statutes, can be established.

Housatonic Terminal Corporation v. Planning & Zoning Board

of Milford, supra, 307.

A church is allowed in a residential zone with a

special permit, and the Commission did not find noncom-

pliance with any specific standards in the zoning regula-

tions. The Commission did not resolve conditions for

App. 7

traffic control devices which would prevent traffic prob-

lems, although it discussed them, because a majority of

the Commission thought the special permit should be

denied for noncompliance with the general regulation

concerning traffic conditions. There was a difference of

opinion between the Commission members themselves,

and between the parties to this appeal, as to the meaning

and application of Sec. 118-21H(3).

If a special permit application conforms with the

standards in the statutes and the agency’s existing regula-

tions, it must be approved. A.P. & W. Holding Corporation

v. Planning & Zoning Board of Milford, 167 Conn. 182, 185,

355 A.2d 91 (1974); Daughters of St. Paul, Inc. v. Zoning

Board of Appeals of Trumbull, supra, 56. The Commission

cannot require the applicant to meet conditions not con-

tained in the regulations themselves. DeMaria v. Planning

& Zoning Commission of Enfield, supra, 540, 541; Powers v.

Common Council of Danbury, 154 Conn. 156, 160, 222 A.2d

337 (1966). A special permit can only be denied for failure

to meet specific standards in the regulations, and not for

vague, general reasons. DeMaria v. Planning & Zoning

Commission of Enfield, supra, 541. See also Kosinski v.

Lawlor, 177 Conn. 420, 423, 418 A.2d 66 (1979).

On appeal, the court reviews the record before the

agency and determines whether the reasons assigned are

reasonably supported by the record and whether they are

pertinent to the considerations which the Commission is

required to apply under the zoning regulations. Holt-Lock,

Inc. v. Zoning & Planning Commission of Granby, 161 Conn.

182, 190, 286 A.2d 299 (1971); Housatonic Terminal Corpora-

tion v. Planning & Zoning Board of Milford, supra, 168

Conn. at 306; Spectrum of Connecticut, Inc. v. Planning &

App. 8

Zoning Commission of Ellington, 13 Conn. App. 159, 163,

535 A.2d 382 (1988). “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.” Oakwood Development Corporation

v. Zoning Board of Appeals of Torrington, 20 Conn. App. 458,

460, 567 A.2d 1260 (1990). Facts supporting the agency’s

decision also include knowledge acquired by commission

members through personal observation of the site, or

through personal knowledge of the area involved in the

application. Id., 460. Credibility of witnesses is also

within the discretion of the Commission. Spectrum of Con-

necticut, Inc. v. Planning & Zoning Commission of Ellington,

supra, 163. Despite deference to the agency on factual

issues and findings, “a court cannot take the view in

every case that the discretion exercised by the local zon-

ing authority must not be disturbed, for if it did the right

of appeal would be empty.” Daughters of St. Paul, Inc. v.

Zoning Board of Appeals of Trumbull, supra, 17 Conn. App.

at 57, quoting from Suffield Heights Corporation v. Town

Planning Commission, 144 Conn. 425, 428, 133 A.2d 612

(1957). Particularly close scrutiny is required here since

the Commission’s action indirectly implicates freedom of

religion under the state and federal constitutions. The

Commission’s inability to reconcile the conflicting traffic

reports and to agree on the proper interpretation of the

regulation also requires some consideration of the cred-

ible evidence before the Commission on the issue of

traffic.

App. 9

2. Traffic conditions as affecting right to a special per-

mit.

The zoning enabling statute, Sec. 8-2 of the General

Statutes, provides in part that zoning regulations “shall

be designed to lessen congestion in the streets.” Accord-

ingly, the consideration Which applies to zoning applica-

tions is not the overall volume of traffic, but whether the

increase in traffic will cause congestion. Lathrop v. Plan-

ning & Zoning Commission of Trumbull, 164 Conn. 215, 222,

319 A.2d 376 (1973). See also Daughters of St. Paul, Inc. v.

Zoning Board of Appeals of Trumbull, supra, 17 Conn. App.

at 69, 549 A.2d 1076 (1988). In addition, a land use agency

cannot deny an application for a permitted use because of

off-site traffic considerations. TLC Development, Inc. v.

Planning & Zoning Commission of Branford, 215 Conn. 527,

532, 533, 577 A.2d 288 (1990) (site plan); Sowin Associates

v. Planning & Zoning Commission of South Windsor, 23

Conn. App. 370, 374, 375, 580 A.2d 91 (1991) (subdivi-

sion). See also Beit Havurah v. Zoning Board of Appeals of

Norfolk, 177 Conn. 440, 443, 418 A.2d 82 (1979), indicating

that designation of property as a permitted use estab-

lishes a conclusive presumption that it does not adversely

affect the district, which precludes further inquiry into

the effect of development of the site upon traffic. Argua-

bly, a different standard applies to special permits, since

they are not permitted uses. They are uses which are

allowed only under conditions specified in the zoning

regulations. While this issue has not been settled under

Connecticut law, and does not have to be resolved to

decide this case, decisions from other states recognize

that any development causes some increased traffic, and

conclude that in order to deny a special permit because of

App. 10

traffic, a project must cause traffic congestion and have a

greater impact on the area than other.permitted uses for

the same property not requiring a special permit. Miller v.

Kiwanis Club of Lock Haven, Inc., 29 Md. App. 285, 347

A.2d 572 (1975); Gowl v. Atlantic Richfield Co., 27 Md. App.

410, 341 A.2d 832 (1975); Hobbs v. Albanese, 417 NYS 2d

556, 70 App. Div. 1049 (1979); Fantastic Plastic v. Zoning

Board of Adjustment, 332 A.2d 557 (Pa. 1975). See also Cape

Ann Land Development Corp. v. City Council of Gloucester,

374 Mass. 825, 373 N.E.2d 218 (1978). Some of the permit-

ted uses in the R-40 zone arguably have an equal or

greater impact upon traffic than construction of a church.

The Commission did not expressly make a finding of

traffic congestion, although it was bothered by the con-

flicting conclusions in the two 1990 traffic studies

(Exhibits 18 and 19) and attempted to reconcile them. The

conflicting opinions should not have been surprising, and

is reminiscent of another case where the court noted:

“Most of the oral testimony before the commis-

sion consisted of glowing statements by the pro-

ponents’ attorneys on the advantages to the

community of the project, while the attorneys

for the opponents painted a gloomy picture of

the effect upon the neighborhood if the gargan-

tuan plans received approbation. Each side pro-

duced experts, or reports by experts, in the

fields of traffic control and town planning. Their

opinions favored the view of their employers.”

Whalen v. Town Plan & Zoning Commission of Fairfield, 146

Conn. 321, 325, 326, 158 A.2d 312 (1959). While the zoning

regulations do not require a traffic study to be submitted

with a special permit application, the plaintiff retained a

App. 11

traffic expert who prepared a report for both the 1988 and

1990 submissions. (Exhibits 18 and 23.) The opponents,

mostly neighboring property owners, hired their own

traffic expert who had the benefit of reviewing both of

the proponents’ reports, and used some of their data in

critiquing them. (Exhibit 19. ) While the opinions on the

effect of additional traffic vary, the reports show basic

agreement on road configuration, existing traffic volumes

and accident statistics.

Access to the site is off Walnut Hill Road, a substan-

tial distance from the intersection of Weed Road to the

west and Old Hawleyville Road to the east. The sight

distances from the proposed entrance on Walnut Hill

Road is about 620 feet to the west and 450 feet to the east,

well in excess of the minimum sight distance of 200 feet

for a road with a posted speed limit of 25 miles per hour.

If the church is built, the Sunday peak hour for traffic will

be between 12:00 noon and 1:00 p.m. The present traffic

volume in both directions on Walnut Hill Road for the

peak hour is 69 vehicles. Vehicle traffic for Weed Road

and Old Hawleyville Road at their intersections with

Walnut Hill Road are 40 and 515 vehicles per hour respec-

tively. With a projected attendance at church services of

508 persons, the site would generate 245 vehicle trips on

Walnut Hill Road during the peak hour, with 15 vehicles

entering and 230 vehicles leaving the property. The appli-

cant’s report projected that 220 of the 230 vehicles leaving

the site, 220 would go easterly on Walnut Hill Road to the

Old Hawleyville Road intersection. There is a stop sign

on Walnut Hill Road at the Old Hawleyville Road inter-

section, but no traffic control device on Old Hawleyville

Road. It was projected that 150 of the 220 vehicles would

App. 12

make a left turn on Old Hawleyville Road and proceed to

a traffic light at Newtown Road (Route 6). The other ten

cars leaving the site would proceed westerly on Walnut

Hill Road to the Weed Road intersection. There is no

traffic control device on Walnut Hill Road but a stop sign

on Weed Road. Both reports were in agreement that the

present level of service in both directions on Walnut Hill

Road is either level of service A or B and that the addi-

tional traffic from the church site which turned westerly

on Walnut Hill Road to Weed Road would not signifi-

cantly change those levels.

Levels of service are rated A through F by traffic

engineers, and are used to describe traffic flow condi-

tions. The capacity of a roadway or intersection is defined

as “the maximum rate of vehicles which have a reason-

able expectation of passing a given section of a lane or

roadway during a given time period under prevailing

roadway and traffic conditions.” Prevailing conditions

take into account physical operating conditions and traf-

fic characteristics including roadway alignment, number

and width of lanes, direction of traffic, traffic control

devices and other factors. Vehicle capacity determines the

ability of a Roadway or intersection to accommodate

traffic under various levels of service. The levels of ser-

vice are a measure of factors which influence the amount

of traffic congestion, including speed and travel time,

traffic interruption, safety and delays. Level of Service A

is the best condition. Level of Service F is characterized

by volumes greater than the roadway capacity as com-

plete congestion occurs, and it is considered unacceptable

traffic operations. Level of Service E is defined as the

actual capacity of the roadway and involves delay to all

App. 13

motorists due to congestion; it is considered to be the

limit of acceptable delay, with delays of 40 to 60 seconds

per vehicle. Service Level F involves delays of over 60

seconds. A level of service for unsignalized intersections

is stated in terms of reserve or unused capacity of the

approach lane in question, measured in additional vehi-

cles per hour.

There was a significant difference of opinion on the

level of service at the Walnut Hill Road intersection with

Old Hawleyville Road resulting from an additional 220

vehicles during the peak hour. The applicant’s report

anticipated a service level between A and C while the

Opponents’ report anticipated Level F because of cars

making a left turn at the intersection onto Old Hawl-

eyville Road. A related consideration was that there had

been 30 accidents at the intersection in a five and one-half

year period.

Walnut Hill Road is generally 20 to 21 feet in width,

and there were only two accidents in five and one-half

years at the Weed Road intersection with Walnut Hill

Road. The applicant’s traffic study did not address ser-

vice levels at that intersection, although it should have

been obvious to the Commission that with the small

number of vehicles involved it would be Service Level A.

The opponents’ report argued that a higher percentage of

cars leaving the site would proceed westerly on Walnut

Hill Road to that intersection and then proceed northerly

on Weed Road to Route 6. The report did not indicate

whether going the opposite direction on Walnut Hill

Road would improve the service level at the Old Hawl-

eyville Road intersection. The opponents’ report also

App. 14

questioned adequacy of sight distances and width of the

roadways near the site.

The minutes of the Commission’s discussion of the

conflicting traffic reports shows concern and confusion

on its part on whether there was adequate compliance

with the regulation. While there was some discussion

about changes in traffic control devices at the Walnut Hill

Road - Old Hawleyville Road intersection, the Commis-

sion was uncertain whether it could act because it did not

have direct control over such changes. In fact, the Com-

mission could have approved the special permit condi-

tional upon a modification of traffic control devices at the

intersection. Lurie v. Planning & Zoning Commission of

Westport, 160 Conn. 295, 307, 278 A.2d 799 (1971) (condi-

tional approval of a special permit was valid where appli-

cant would pay for off-site improvements and initial

approval was obtained from the State Highway Depart-

ment).

The plaintiff claims that the general, vague standard

relied upon by the Commission was inadequate to pre-

vent approval of the special permit. The regulation

requires the Commission to find that “no conditions will

be created which will adversely affect traffic.” Several

concepts support the plaintiff’s position. Zoning regula-

tions, which are in derogation of common law property

rights, should not be construed to include or exclude by

implication matters that are not clearly within their

expressed terms. Planning & Zoning Commission of Lebanon

v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). While

the interpretation of a zoning regulation by a land use

agency is entitled to some deference, the interpretation of

provisions in the ordinance is a question of law for the

App. 15

court. Danseyar v. Zoning Board of Appeals of Middletown,

164 Conn. 325, 327, 321 A.2d 474 (1973); Thorne v. Zoning

Board of Appeals of Stamford, 156 Conn. 619, 620, 238 A.2d

400 (1968). The proper consideration for traffic in a zon-

ing context is not whether the use increases traffic vol-

ume, but whether it causes a traffic hazard or traffic

congestion. Lathrop v. Planning Zoning Commission of

Trumbull, supra, 222. However, the regulation does not

refer to traffic congestion and it is apparent from the

discussion on the application (Exhibit 49) that the Com-

mission was uncertain exactly what it had to consider to

determine whether the project conformed with the regu-

lation. Some Commission members had the impression

that any change in the level of service, even short of Level

F, violated the regulation. Other discussion focused on

road and sight line distances at locations not near the site

and on highways other than Walnut Hill Road. A munici-

pality has a legal duty to maintain its highways in a

reasonably safe condition for public travel, Stamford Dock

& Realty Corp. v. Stamford, 124 Conn. 341, 344, 200 A. 346

(1938), and cannot deny access to a public highway on the

excuse that it has not adequately maintained its roads.

3. General regulation as ground for denial of special

permit.

Part of the Commission’s problem in applying the

regulation resulted from the vagueness of the regulation

itself. Administrative regulations must have adequate,

fixed and sufficient standards to guide the agency in their

application to avoid decisions which allow the agency to

interpret the regulations in more than one manner and

App. 16

apply them arbitrarily. Ghent v. Planning Commission of

Waterbury, 219 Conn. 511,517, ____ A.2d ___ (1991); Sonn v.

Planning Commission of Bristol, 172 Conn. 156, 162, 374

A.2d 159 (1976). A property owner cannot be required to

offer sufficient proof as the agency may require to allow

use of property where the agency’s view is not guided by

fixed standards. Helbig v. Zoning Commission of Noank Fire

District, 185 Conn. 294, 310, 448 A.2d 940 (1981). What

will “adversely affect” traffic is a vague and imprecise

concept susceptible of several interpretations. The plain-

tiff claims that the only reasonable construction of the

regulation is that the application cannot be denied based

on it unless a specially permitted use generates traffic

which will have a greater adverse impact than permitted

uses in the zone, and the traffic generated by the site will

endanger public safety. “The designation of a particular

use of property as a permitted use establishes a conclu-

sive presumption that such use does not adversely affect

the district and precludes further inquiry into its effect on

traffic, municipal services, property values, or the general

harmony of the district.” Beit Havurah v. Zoning Board of

Appeals of Norfolk, supra, 177 Conn. at 443. Some of the

permitted uses in a residential zone, such as a community

recreation facility, public park and public playground,

may generate as much concentrated traffic as a church

“ and with the same potential effect. The effect of permitted

uses upon adjacent roadways, while not controlling, pro-

vides some guidelines as to traffic volume and concentra-

tion required to adversely affect traffic in the vicinity of

the site.

'n the final analysis, despite the conflicting evidence

an.’ uncertainty as to the meaning of the regulation, the

CE

App. 17

Commission voted down the application by only a four to

three vote. In addition, it had previously approved vir-

tually the same application in 1988, although that

approval was appealed and reversed on a procedural

ground (Mark C. Hehl, et al. v. Bethel Planning & Zoning

Commission, CV88-0295893S, appeal sustained for receipt

of evidence after the public hearing).

4. Right of zoning authority to deny application which

was previously approved.

There is a well established concept in the administra-

tive law of this state which prohibits an administrative

agency from reversing its prior decision unless the facts

and circumstances which resulted in the decision have

sufficiently changed to materially affect the reason which

produced and supported the decision and no vested

rights have intervened. Laurel Beach Assn. v. Zoning Board

of Appeals of Milford, 166 Conn. 385, 387, 349 A.2d 834

(1974); Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d

382 (1952); St. Patrick’s Church Corporation v. Daniels, 113

Conn. 132, 139, 140, 154 A.343 (1931); Root v. Zoning Board

of Appeals of Madison, 41 Conn. Sup. 218, 220-21, 565 A.2d

14 (1989); Carlson v. Fisher, 18 Conn. App. 488, 497, 558

A.2d 1029 (1989).

An administrative agency which has acted on a spe-

cial permit application is not allowed to reverse itself

unless a change of circumstances intervenes which mate-

rially affects the merits of the case, except that it can

grant a second application which has been substantially

changed to meet the objections the agency had to the

original application. Rocchi v. Zoning Board of Appeals of

App. 18

Glastonbury, 157 Conn. 106, 111, 248 A.2d 922 (1968);

Mitchell Land Co. v. Planning & Zoning Board of Appeals of

Greenwich, 140 Conn. 527, 534-35, 102 A.2d 316 (1953). The

decisions on this concept have involved disapproval of an

initial application and submission of a second one which

is then approved, but it should also apply where an initial

approval which is not implemented is then taken away on

a second application.

There is no evidence of changed conditions from the

time of the prior approval. While the opponents retained

a traffic engineer to oppose the application, his report

primarily relied upon the data of the proponent’s traffic

expert from both the 1988 and 1990 applications, even

though the two experts reached different conclusions. For

material changes to exist since the prior application, there

should be some evidence of changed conditions in the

immediate vicinity of the subject property connected with

the reason for disapproval of the second application. See

Burr v. Rago, 120 Conn. 287, 293, 180 A. 444 (1935). There

is no evidence of changed traffic conditions in the area

between July, 1988 and October, 1990 or any other land

development activities which would significantly

increase the traffic volume or cause traffic congestion on

the roads near the project. In addition, while there may

be some question or debate over traffic conditions, the

commission did not clearly make a mistake by its July,

1988 approval of the project. The Town officials and agen-

cies to which the applications were referred had no sig-

nificant problems with either application. Absent factual

findings by the Commission as to how the application

was different from the previous one, it should not have

0 TO OO EE EE ——

App. 19

denied the special permit. See Anastasi v. Zoning Commis-

sion of Bristol, 163 Conn. 187, 189, 190, 302 A.2d 258

(1972). This is particularly true where the applicant was

willing to consider reasonable controls and improve-

ments to prevent traffic problems. While all of the consid-

erations previously discussed show that the one reason

assigned by the Commission for denying the application

was inadequate and that it abused its discretion in deny-

ing the special permit, this case presents another critical

factor which requires reversal of the decision and

approval of the special permit.

5. Constitutional limitations on applying zoning regula-

tions to churches.

The plaintiff contends in both this case and the

declaratory judgment action thai special standards apply

here because the right to the free exercise of religion is

involved,that the zoning regulations are unconstitutional

and violate several provisions of the U.S. and Connecticut

Constitutions. The right to raise such claims in a land use

appeal is limited. As the defendant ciaims, Connecticut

adheres to a rule that a party who makes an application

under a zoning or other land use ordinance is precluded

in the same proceeding from raising the question of its

constitutionality. Bierman v. Planning & Zoning Commission

of Westport, 185 Conn. 135, 139, 448 A.2d 882 (1981); /] & M

Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534

(1968); St. John’s Roman Catholic Church Corporation v. Dar-

ien , 149 Conn. 712, 717, 184 A.2d 42 (1962). Constitutional

App. 20

questions can be raised in a separate declaratory judg-

ment proceeding. Bierman v. Planning & Zoning Commis-

sion of Westport, supra, 185 Conn. at 140; St. John’s Roman

Catholic Church Corporation v. Darien, supra; Cioffoletti v.

Planning & Zoning Commission of Ridgefield, 209 Conn. 544,

563, 552 A.2d 796 (1989). This prevents a broad constitu-

tional attack on the-Bethel Zoning Regulations in this

appeal, even though churches are not a permitted use in

any zone in the town. However, there is an exception to

this rule which allows an unsuccessful applicant to raise

constitutionality of a regulation in an administrative

appeal as applied only to its own property under the facts

of the case. Bierman v. Planning & Zoning Commission of

Westport, supra, 185 Conn. at 140; ] & M Realty Co. v.

Norwalk, supra, 156 Conn. at 191 n.; DeForest & Hochkiss

Co. v. Planning & Zoning Commission of Madison, 152 Conn.

262, 269, 205 A.2d 774 (1964).

Several cases in this state have considered the appli-

cation of zoning regulations to churches. In West Hartford

Methodist Church v. Zoning Board of Appeals of West Hart-

ford, 143 Conn. 263, 121 A.2d 640 (1956), it was held that a

zoning board of appeals did not abuse its discretion by

denying a special exception for a church in a residential

zone where the proposed location would adversely affect

the area because of an increase in traffic which would

cause a substantial loss in value of nearby residential

properties. The court noted, 143 Conn. at 266, that the

plaintiff had withdrawn its claim that the provision of the

zoning regulations which forbids the use of property

within certain zones unless a special exception was

ee

App. 21

obtained from the board was unconstitutional, and lim-

ited the decision to whether the church met the regula-

tions. In St. John’s Roman Catholic Church Corporation v.

Darien, supra, 149 Conn. at 720, it was recognized that

even though churches may not be completely excluded

from residential zones, they can be subject to reasonable

regulation as to their location without violating the con-

stitutional guarantee of freedom of religion. This is the

majority rule. See Anderson, American Law of Zoning, Sec.

12.22. While not deciding the question here, both cases

recognized that even if they cannot be wholly excluded

from a town, churches and church schools may be subject

to reasonable zoning regulations and require a special

permit. In a subsequent case, Beit Havurah v. Zoning Board

of Appeals of Norfolk, supra, the court took a broad view as

to the type of activities that are allowed as accessory uses

to a church. More recently, in Daughters of St. Paul, Inc. v.

Zoning Board of Appeals of Trumbull, supra, 17 Conn. App.

at 53, the Appellate Court upheld the trial court's reversal

of the denial of a special exception (special permit) for

construction of a convent and religious book store. While

not deciding the case on constitutional grounds, the opin-

ion recognizes that the free exercise of religion clauses

under Article One, Sec. 3 of the Connecticut Constitution

and the First Amendment of the United States Constitu-

_— tion require more protection for churches than other uses

of property, and that zoning regulations should not be

strictly enforced against religious uses. Daughters of St.

Paul, Inc. v. Zoning Board of Appeals supra, 17 Conn. App.

at 67, 68. However, none of the Connecticut cases resolve

App. 22

to what extent the state and federal constitutional provi-

sions preclude or limit zoning regulations on churches

and church activities.

Cases from other states have held that it is illegal for

a municipality to exclude churches in all zones, from all

residential zones, to allow them in the municipality only

with a special permit, or have held that there was no

compelling reason to deny a special permit. Congrega-

tional Temple Israel v. City of Creve Coeur, 320 S.W.2d 451,

456 (Mo. 1959) (exclusion from residential zones);

Englewood v. Apostolic Christian Church, 146 Colo. 374, 362

P.2d 172 (1961) (church allowed only with special permit);

Islamic Center of Mississippi v. City of Starkville, Mississippi,

840 F.2d 293 (5th Cir. 1988) (church allowed only with

special permit in zone, even though permitted use in

another residential zone); Rogers v. Mayor & Aldermen of

City of Atlanta, 110 Ga. App. 114, 137 S.E.2d 668, 671

(1964) (church allowed only with special permit in resi-

dential zone); Diocese of Rochester v. Planning Board of

Town of Brighton, 1 N.Y.2d 508, 136 N.E.2d 827, 834 (1956)

(churches cannot be excluded from a residential district);

State ex rel. Synod of Ohio of United Lutheran Church v.

Joseph, 139 Ohio St. 229, 39 N.E.2d 315 (1942) (church

allowed in residential district only with special permit);

Congregation Committee, North Fort Worth Congregation of

Jehovah's Witnesses v. City Council of Haltom City, 287

S.W.2d 700 (Tex. Civ. App. 1956); Mooney v. Orchard Lake,

333 Mich. 389, 53 N.W. 2d 308 (1952); State ex rel.

Wenatchee Congregation of Jehovah's Witnesses v. City of

Wenatchee, 50 Wash. 2d 378, 312 P.2d 195 (1957) (special

permit required for church in residential zone); Church of

Christ in Indianapolis v. Metropolitan Board of Zoning

———

App. 23

Appeals of Marion County, 175 Ind. App. 346, 371 N.E. 2d 1

331 (1978); North Shore Unitarian Society v. Village of Plan-

dome, 200 Misc. 524, 109 N.Y.S. 2d 803 (1951); Barhi v. Deal

Borough Commissioners, 204 N.J. Super. 575, 499 A.2d 559

(1985); Jehovah's Witnesses Assembly Hall v. Woolwich Town-

ship, 220 N.J. Super. 381, 532 A.2d 276 (1987). See also 82

Am. Jur. 2d Zoning and Planning, Sec. 154; Anderson Ameri-

can Law of Zoning, 3d Ed., Sec. 12.22; Love Church v. City of

Evanston, 671 F. Supp. 515 (N.D. Ill., 1987), reversed on

other grounds, 896 F.2d 1082 (7th Cir. 1990); Annotation,

74 A.L.R. 2d 377.

These cases are based on the concept that such zon-

ing restrictions must yield to the right of freedom of

religion protected by the First and Fourteenth Amend-

ments to the U.S. Constitution and comparable provisions

in state constitutions where the zoning regulations unrea-

sonably hinder or restrict religious activities. Constitu-

tional provisions do not prevent all governmental

regulation of churches and religious organizations, and

they may be subject to religiously neutral regulation for a

secular governmental purpose under the police power,

such as, fire inspection, building and zoning regulations.

St. John’s Roman Catholic Church Corporation v. Darien,

supra, 149 Conn. at 720, 723; Wisconsin v. Yoder, 406 U.S.

205, 214, 92S. Ct. 1526, 1532, 32 L. Ed. 2d 15 (1972); Lemon

v. Kurtzman, 403 U.S. 602, 612-14, 91 S. Ct. 2105, 2111-12,

29 L. Ed. 2d 745 (1971); Islamic Center of Mississippi v. City

of Starkville, Mississippi, supra, 299; Church of Christ in

Indianapolis v. Metropolitan Board of Zoning Appeals of Mar-

ion County, supra, 371 N.E.2d at 1334. The First Amend-

ment limits the enactment of any law “respecting an

establishment of religion, or prohibiting the free exercise

dinette

App. 24

thereof.” Article First, Sec. 3 of the Connecticut Constitu-

tion has a comparable provision. Article First, Sec. 20

guarantees equal protection of the laws and provides that

no person shall be discriminated against in the exercise of

his or her rights because of religion. The effect of these

provisions on the plaintiff’s property and to what extent

they override zoning regulations based upon the police

power, is beyond the scope of and unnecessary to decide

this appeal.

Article Seventh of the Connecticut Constitution does

have a provision which more specifically bears on the

issue involved here, the right to build a church building

on property owned by a church or ecclesiastical society.

Article Seventh provides in part that any religious society

“may build and repair houses for public worship.” Provi-

sions of our state constitution may be construed to pro-

vide greater protection of rights than the United States

Constitution gives. Husti v. Zuckerman Property Enter-

prises, Ltd., 199 Conn. 575, 589, 508 A.2d 735 (1986). The

provision in Article Seventh, giving religious societies the

right to build churches, has not been construed in our

cases including, St. John’s Roman Catholic Church Corpora-

tion v. Darien, supra, 149 Conn. at 720, where it was

indicated that churches and church schools may be sub-

ject to reasonable regulations through zoning regarding

their location without violating the constitutional guaran-

tee of freedom of religion. Since this is an administrative

appeal, it is not the proper action to decide whether

Article Seventh creates a paramount right of a church

society to build a church building without regard to

App. 25

reasonable restrictions in the municipality’s zoning regu-

lations or significant traffic safety and congestion prob-

lems caused by its construction. Moreover, the plaintiff

has conceded that the constitutional provisions protecting

freedom of religion do not give a church the absolute

right of a religious organization to construct a church

building wherever it wants and in disregard of reason-

able land use regulations based on the police power.

Our Supreme Court in Burns v. Barrett, 212 Conn. 176,

187, 561 A.2d 1378 (1989), quoting Cox v. New Hampshire,

312 U.S. 569, 574, 61 S. Ct. 762, 85 L. Ed. 104 (1941), stated

that a restriction on use of highways to promote the

public interest of everyone is not prevented by the

attempted exercise of first amendment rights which in

other circumstances would be entitled to protection. See

also Husti v. Zuckerman Property Enterprises, Ltd., supra;

Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d

1201 (1984). However, some increased traffic from con-

struction of a church is not a sufficiently significant factor

to warrant limitation of freedom of religion by denial of a

special permit. Family Christian Fellowship v. County of

Winnebago, 151 Ill. App. 616, 503 N.E. 2d 367 (1987); State

ex rel. Wenatchee Congregation of Jehovah's Witnesses v. City

of Wenatchee, supra, 312 P.2d at 199; Congregation v. City

Council of Haltom City, supra, 705; 82 Am. Jur. 2d 639, 640,

Zoning and Planning, Sec. 154. In short, where there is a

conflict between constitutional rights and land use regu-

lations under the police power, the outcome depends

upon the facts of each case. This type of problem fre-

quently arises when land use regulations as applied to a

specific property amount to an unconstitutional taking of

it under the state and federal constitutions. See Bartlett v.

App. 26

Zoning Commission of Old Lyme, 161 Conn. 24, 31, 282 A.2d

907 (1971). “[A] litigant may challenge the validity of a

statute or ordinance under the Connecticut constitution

only as it has been applied to him.” Husti v. Zuckerman

Property Enterprises, Ltd., supra, 199 Conn. at 589. Under

the facts of this case, the plaintiff church was entitled to a

special permit on nonconstitutional grounds. However,

even if those factors were insufficient to overturn the

Commission’s denial of the special permit, under the

facts of this case and considering the specific and appar-

ently unique language of Article Seventh of the Connecti-

cut Constitution, denial of the special permit to build the

church here would be illegal, and the provision in the

zoning regulations would be unconstitutional as applied

to the plaintiff's property.

6. Conclusion -

Even though the Commission must grant a special

permit to the church, it has the right to attach reasonable

conditions necessary to protect the public health, safety,

convenience and property values, as provided by Sec. 8-2

of the General Statutes. Summ v. Zoning Commission of

Ridgefield, 150 Conn. 79, 91; 186 A.2d 160 (1962);

Housatonic Terminal Corporation v. Planning & Zoning Board

of Milford, supra, 168 Conn. at 307. The Commission’s

authority to impose reasonable conditions is not a stan-

dard allowing it to tack on any condition it wants, but

merely the conditions allowed by the statute and the

regulations. Reasonable and necessary conditions within

the control of the applicant to alleviate traffic congestion

in the vicinity of the site can be attached to a special

App. 27

permit. Lurie v. Planning and Zoning Commission of West-

port, supra, 160 Conn. at 299, 307; Sec. 118-211 of the

Bethel Zoning Regulations.

The appeal is sustained and remanded to the Com-

mission for proceedings consistent with this decision.

Section 8-8(1) of the Connecticut General Statutes.

/s/ Robert A. Fuller

Robert A. Fuller, Judge