Buddhists Appeal

P&Z’s Rejection

Of Temple Proposal

By Andrew Gorosko

Citing religious freedom, as protected by state and federal law, the Cambodian Buddhist Society of Connecticut, Inc, has filed an administrative appeal in Danbury Superior Court, in seeking to overturn the Planning and Zoning Commission’s (P&Z) recent rejection of the society’s controversial proposal to build a 7,600-square-foot Buddhist temple/meeting hall at 145 Boggs Hill Road.

Through the appeal, which was filed in court March 12, the society seeks to have a judge order the P&Z to approve the temple/meeting hall application, cover the society’s costs stemming from the court appeal, and provide other relief to the society, as deemed fit by the court.

On February 20, the P&Z unanimously rejected the Buddhist society’s proposal to build a temple/meeting hall at the society’s ten-acre property. In turning down the application in a 5-to-0 vote, P&Z members said the Buddhists’ envisioned use of the property, involving increased traffic and noise, would be “far too intense for this particular site.” The Buddhist society now has a monastery at its property.

The proposal drew heavy opposition from nearby property owners, who listed traffic and noise among their complaints about the development application. 

Besides the Buddhist society, Pong Me of Bristol, who is the society’s president, is listed as a plaintiff in the case. The P&Z is the only defendant named in the case.

Hartford land use attorney Michael A. Zizka is the plaintiffs’ lawyer in the appeal. Attorney Robert Fuller typically represents the P&Z in such cases. The P&Z has an April 22 court return date in the appeal. Administrative appeals of municipal land use decisions often take nine to 12 months, or more, to decide at the Superior Court level. 

 

Five Counts

In their appeal, the plaintiffs list five counts explaining why they are aggrieved by the P&Z’s denial of their application for a “special exception” to the zoning regulations to build a temple/meeting hall.

 According to the lawsuit, “Pong Me planned to worship and engage in other religious activities at the property, if the application at issue had been approved…Pong Me is aggrieved as the president of the society and as a person, whose ability to exercise his freedom to worship without undue governmental interference, was directly and injuriously affected by the decision at issue.”

In the legal papers, the society alleges that the P&Z’s rejection of the temple/meeting hall application was “arbitrary, illegal and an abuse of...discretion,” listing several reasons why the denial was illegal.

 The plaintiffs state the P&Z’s rejection is not supported by the record of the application; nothing in the record provides a lawful basis for the rejection; the P&Z based its decision, in part, on information that was not contained within the record, thereby denying the Buddhist society a fair opportunity to respond; the P&Z unfairly prejudged and predetermined the outcome of the application, and the P&Z arbitrarily and inequitably applied the standards of its regulations, thus denying the plaintiffs the equal protection of the law.

In the second count of the appeal, the plaintiffs assert that Connecticut law maintains that it is unlawful for a municipal agency “to burden any person’s exercise of religion, unless the [agency] demonstrates that a burden to such person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.” The P&Z’s action imposes a burden on the society’s and on its members’ exercise of their religion, it adds.

The appeal states that none of reasons listed by the P&Z in its rejection constitute a compelling governmental interest. Even if the reasons for denial may be construed to constitute a compelling governmental interest, the denial was not the least restrictive means of furthering such a compelling governmental interest, it adds.

In the third count, the plaintiffs raise the existence of a federal law that concerns the use of land for religious purposes.

“The federal Religious Land Use and Institutionalized Persons Act…prohibits any governmental entity from imposing or implementing 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…is in furtherance of a compelling government interest, and is the least restrictive means of furthering that compelling government interest,” the appeal states.

The P&Z’s denial of the temple/meeting application violates the provisions of that federal religious land use law, the plaintiffs contend.

The plaintiffs contend that the application’s rejection imposes a substantial burden on the society because it prevents the society’s exercise of religion; none of the reasons for the rejection constitutes a compelling governmental interest; and even if the reasons for the rejection could be construed to constitute a compelling governmental interest, the rejection was not the least restrictive means of furthering such an interest.

In the appeal’s fourth count, the plaintiffs challenge the legitimacy of the zoning regulations’ requirement for a “special exception” to the regulations for religious worship on the property.

Such a requirement “unlawfully and unduly [burdens] the plaintiffs’ ability to exercise their religious freedom in violation of [federal law] in that those [zoning] regulations are not in furtherance of a compelling government interest, and are not the least restrictive means of furthering that compelling government interest,” the appeal states.

In the fifth count, the plaintiffs allege that the P&Z’s requirement for a special exception for religious worship violates their exercise of religious freedom, as protected by applicable state law.

In reviewing applications for special exceptions to the zoning regulations, such as the Buddhist temple/meeting hall application, P&Z members typically have broader discretion than they do with applications for subdivisions of property and for site development plans, whose approvals are more technically based and more strictly defined by the regulations.

Rationale For Rejection

The Buddhists submitted their initial application for the temple/meeting hall project to the town last July. The project gained endorsements from the Zoning Board of Appeals and from the Conservation Commission, which serves as the town’s wetlands agency.

In their February 20 motion to reject the application, P&Z members stated they are fully aware of their obligations in meeting the requirements of religious freedom, as described in the First Amendment to the US Constitution and applicable federal law, but find that rejecting the application serves a compelling governmental interest.

In their seven-page motion to reject the application, P&Z members stated, “Although the [P&Z] would welcome the Buddhist religion into the community, the planned and expected future level of activity proposed…is too intense.”

One group that was pleased with the P&Z’s rejection of the temple/meeting hall applications was the Newtown Residential Preservation Society. The ad hoc group, composed of people who live in the Boggs Hill Road area, was formed in opposition to the Buddhists’ development application. The group has strongly opposed the proposal since last summer.

In rejecting the application, P&Z members generally decided that the ten-acre sloping site at 145 Boggs Hill Road holds a significant amount of wetlands, limiting the area that would accommodate the existing facilities, the proposed temple/meeting hall, parking for about 150 vehicles, and activities involving 450 or more people on weekends.

“These site limitations, combined with the proposed level of activity and site improvements, do not allow for adequate buffers between the subject site and the neighboring properties. The application is inconsistent with reasonable expectations of noise and activity that a quiet rural neighborhood should have to tolerate,” according to the P&Z.

“Even at the applicant’s stated usage [levels], the project represents a major safety hazard for those who drive on Boggs Hill Road,” it adds.

The P&Z found that “the application does not illustrate that applicable state health codes for septic [system operation] and water supply have been met.”

“The applicant has not expressed that this particular location is critical to [its] needs and the [P&Z] envisions the problems…to increase in nature as the participation at the temple increases. The total scenario indicates that this activity, as proposed, is far too intense for this particular site,” according to the P&Z.

In rejecting the application, the P&Z stated that the proposal did not meet the standards and criteria that are considered when an applicant seeks a special exception to the zoning regulations, such as the Buddhists sought. The P&Z found that the proposed use of the property would not be in harmony with the general character of the neighborhood, would damage nearby property values, would create traffic congestion and traffic hazards, and that the design of the proposed temple/meeting hall would not be in harmony with nearby architecture, among other deficiencies.

P&Z members had questioned the credibility of information that had been presented to them by the applicant, saying that they expected that the scope of activities at the site would far exceed what the applicant had stated.

After the Buddhists acquired the Boggs Hill Road property in early 1999, nearby residents complained to the P&Z that the Buddhists held large events there, which created noise and traffic problems. Based on those complaints, the P&Z issued a cease-and-desist order against the Buddhist society not to hold such gatherings unless it received a special permit to do so. Through its P&Z application, the society had sought that special permit.