Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission

This appeal by the named plaintiff, Cambodian
Buddhist Society of Connecticut, Inc. (society),
and the plaintiff Pong Me, the society's president, arises
from the decision of the defendant planning and zoning
commission of the town of Newtown (commission)
denying the society's application for a special exception
to build a Buddhist temple on its property located in
the town of Newtown (town). The plaintiffs appealed
from the commission's decision to the trial court, claiming
that the reasons for the denial were not supported by
the record and that the denial violated General Statutes
§ 52-571b1 and the federal Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. § 2000cc et
seq. (RLUIPA).2 The trial court dismissed Me's appeal
for lack of standing and denied the society's appeal on
the merits. On appeal to this court,3 Me challenges the
trial court's conclusion that he does not have standing
to bring this action, and the society and Me contend
that the trial court incorrectly determined that the commission's
denial of the society's application was supported
by substantial evidence and did not violate either
RLUIPA or § 52-571b. We conclude that (1) the trial
court properly dismissed Me's claims for lack of standing,
(2) neither RLUIPA nor § 52-571b is applicable to
the present case, and (3) the commission's decision to
deny the society's application for a special exception
was supported by substantial evidence. Accordingly,
we affirm the judgment of the trial court.

The record reveals the following facts and procedural
history. In 1999, the society purchased a ten acre lot
on Boggs Hill Road in Newtown, containing two acres of
wetlands and a three acre pond. Four Buddhist monks
resided on the property at that time. The property is
located in a farming and residential zone in which the
operation of places of religious worship is permitted
by special exception. On August 15, 2002, the society
submitted to the commission an application for a special
exception to construct a 6000 square foot meditation
temple and meeting hall on the property. The
application indicated that off-street parking for approximately
100 vehicles would be required for the proposed
temple.

The commission conducted public hearings on the
application on October 17 and December 9, 2002. At its
regular meeting on February 20, 2003, the commission
voted to disapprove the society's application for a special
exception on the ground that it did not comply with
the standards and criteria set forth in the governing
zoning regulations. After noting that the application
had been revised to reflect a 7618 square foot building,
including a 1618 square foot meditation temple and a
6000 square foot meeting hall, with 148 parking places
to accommodate 450 society members at five major
Buddhist festivals annually, the commission concluded
that the proposed use was inconsistent with a ‘‘quiet
single-family residential neighborhood with a rural setting''
and, therefore, did not meet § 8.04.710 of the Newtown
zoning regulations (regulations), which requires
that the ‘‘[t]he proposed use shall be in harmony with
the general character of the neighborhood.''

The commission also noted that a newspaper article
presented at the hearings revealed that the United
States Department of Commerce had awarded a grant
to an entity known as Khmer Health Advocates for three
health treatment facilities, one of which was reported
to be located on the society's property. The commission
indicated that it was not convinced by the society's
representations that it did not intend to use the site for
health treatment purposes. Because that use was not
permitted in a residential zone, it did not meet § 8.04.720
of the regulations, which requires that ‘‘[t]he proposed
use shall not be inconsistent with the intent and purpose
of [the] regulations.''

The commission also determined that, contrary to
the society's estimate, the increase in traffic volume at
the site during peak use would be 100 to 200 percent
over existing traffic volume. Accordingly, the commission
concluded that the proposed use was not in conformity
with the requirement of § 8.04.740 of the regulations
that ‘‘[t]he proposed use . . . not create additional
congestion or a traffic hazard on existing streets.''

In addition, the commission determined that the
increase in traffic congestion, as well as the traditional
Buddhist design of the proposed temple, was inconsistent
with § 8.04.730 of the regulations, which provides
that ‘‘[t]he proposed use shall not substantially impair
property values in the neighborhood.'' The commission
further concluded that the temple design was not in
compliance with the provision of § 8.04.770 of the regulations
that ‘‘[t]he architectural design of the proposed
buildings shall be in harmony with the design of other
buildings'' in the neighborhood.

Finally, the commission concluded that the society
had not established that the proposed septic system
and water supply system complied with the state public
health code. Accordingly, the proposed use did not meet
§ 8.04.750 of the regulations, which provides that ‘‘[t]he
proposed use shall not create a health or safety hazard
to persons or property on or off the lot on which the
use is proposed.'' Following its vote to disapprove the
society's application, the commission stated that it
believed that ‘‘[a]pproval of the application [would have
been] a disservice to the Buddhists because they could
not use the property the way they wished to.'' The
commission also stated that ‘‘[d]iversity of religion
should be encouraged in Newtown,'' and expressed the
‘‘[hope] that the [society] could find property more suitable
to [its] needs.''

The plaintiffs appealed from the adverse decision
of the commission to the Superior Court pursuant to
General Statutes § 8-8. They alleged in a five count
complaint that the commission's decision was arbitrary,
illegal and an abuse of discretion because (1) the reasons
for the decision were not supported by the record
(first count), (2) the decision violated § 52-571b (second
count), (3) the decision violated RLUIPA (third count),
(4) as applied, the regulations were not in furtherance
of a compelling governmental interest and were not the
least restrictive means of furthering a governmental
interest and, therefore, were in violation of RLUIPA
(fourth count), and (5) as applied, the regulations were
not in furtherance of a compelling governmental interest
and were not the least restrictive means of furthering
a governmental interest and, therefore, were in violation
of § 52-571b (fifth count). Thereafter, several owners
of property abutting and within 100 feet of the society's
property filed a motion to intervene as defendants in
the appeal, which the court, J. R. Downey, J., granted.4
The commission filed a motion to dismiss Me's claims
on the ground that he had no property interest in the
property and, therefore, lacked standing to bring a zoning
appeal. The trial court, J. R. Downey, J., granted
the motion.5 The commission also filed a motion to
strike (1) the second count of the complaint, contending
that the society did not have a cause of action under
§ 52-571b because the statute protects only individual
rights, (2) the second, third, fourth and fifth counts
because claims pursuant to § 52-571b and RLUIPA cannot
be joined in a zoning appeal, and (3) the fourth
and fifth counts because neither § 52-571b nor RLUIPA
exempts religious uses from zoning regulations or
authorizes the invalidation of such regulations. The trial
court, J. R. Downey, J., granted the motion to strike
as to the fourth and fifth counts on the ground that
those counts were duplicative of the second and third
counts and denied the remaining portions of the motion
to strike. Thereafter, the society revised its complaint
in conformance with the trial court's rulings on the
motions to dismiss and to strike.

The trial court, Frankel, J., conducted an evidentiary
hearing on the society's zoning appeal on June 15, 2005.
Me testified at the hearing that the society currently
had no temple in the state of Connecticut at which its
members could worship. He further testified that the
society had purchased the property in Newtown
because that property possessed the appropriate qualities
for a temple. Pinith Mar, a member of the society
and Me's son-in-law, testified that, because the society
had no temple, it had been required to hold religious
services in a rented space. Bruce Blair, a member of
the society, testified that it is essential to Cambodian
Buddhism that monks live in the temple and that the
practitioners be able to visit the temple where the
monks live. It also is important that the temple be
located in a tranquil environment where the practitioners
can enter into a meditative state. Blair further
testified that the older generation of Cambodian Buddhists
is dying without being able to introduce the youngest
generation to the religion, and if much more time
passes before the society is able to build a temple, there
might be no need for one.

In its posttrial brief to the trial court, the society
contended that, under these circumstances, the commission's
denial of the application for a special exception
to build the temple substantially burdened the
society's exercise of religion within the meaning of § 52-
571b and RLUIPA. The society further contended that
the denial violated those statutes because it served no
compelling government interest and, even if it did, denying
the application was not the least restrictive means
of furthering that interest. The commission responded
that, because the society had not established that it was
unable to construct a temple at another location within
the town, and because the commission had applied the
same standards to the society's application that it would
have applied to any applicant for a special exception,
the society had failed to establish that its exercise of
religion had been substantially burdened under RLUIPA
or burdened under § 52-571b.

The trial court agreed with the commission that, in
the absence of evidence demonstrating that the society
was precluded from building a temple on other sites
within the town or that the commission would not have
imposed the same health and safety standards on other
applicants, the denial of the society's application did
not constitute a substantial burden on its exercise of
religion under RLUIPA or a burden under § 52-571b.
The trial court also concluded, however, that, under the
traditional standard of review for appeals from zoning
decisions, there was insufficient evidence to support
the commission's determination that the society's proposed
use of the property did not meet the requirements
of §§ 8.04.710, 8.04.720, 8.04.730 and 8.04.770 of the
regulations because the design of the proposed temple
was not consistent with the other buildings in the neighborhood.
In addition, the court concluded that the commission's
determination that the proposed use did not
meet the excessive traffic provisions of § 8.04.740 was
based on mere speculation.

With respect to the commission's determination that
the proposed use did not meet the requirements of
§ 8.04.750 of the regulations, however, the court determined
that it was within the commission's discretion
to deny the application because the society had failed to
obtain approval of its septic and water supply systems.
Accordingly, the court concluded that the commission
had not acted illegally, arbitrarily or in abuse of its
discretion in denying the application and denied the
society's appeal.

This appeal followed. On appeal, Me contends that
the trial court improperly dismissed his claims for lack
of standing. In addition, Me and the society claim that
the trial court incorrectly concluded that the commission's
denial of the society's application for a special
exception (1) did not constitute a substantial burden
on their exercise of religion under RLUIPA,6 (2) did not
constitute a burden on the exercise of religion under
§ 52-571b, and (3) was supported by substantial evidence,
namely, that the society had not obtained
approval of its septic and water supply systems. The
commission and the intervenors dispute these claims.
The commission also claims, as alternate grounds for
affirmance, that the traffic conditions at and near the
society's property justified the commission's denial of
the application and that the society lacked standing
to bring a claim under § 52-571b because that statute
protects only individual rights.

We conclude that the trial court properly dismissed
the action as to Me. We further conclude that the court
correctly determined that the society had standing to
bring a claim under § 52-571b. With respect to the society's
claims that the commission's decision violated
RLUIPA and § 52-571b, we conclude that those statutory
provisions do not apply under the circumstances of this
case. Finally, we conclude that, under the standard of
review applicable to traditional zoning appeals, there
was substantial evidence to support the commission's
denial of the society's application, and, therefore, the
trial court properly denied the society's appeal.

I

We first address Me's contention that the trial court
improperly dismissed his claims on the ground that he
lacked standing to bring a zoning appeal related to
the society's property. Me contends that, because the
commission's decision affected the exercise of his religious
beliefs, he had an interest that fell within the zone
of interests protected by RLUIPA and § 52-571b that
was adversely affected by the commission's decision,
and, therefore, he was aggrieved. The commission
asserts that the court correctly determined that Me was
not statutorily aggrieved by the commission's denial of
the society's application for a special exception within
the meaning of General Statutes § 8-8 (a) (1)7 because
he did not own the property and did not own land
abutting or within 100 feet of the property. The commission
further maintains that Me was not classically
aggrieved because he had no specific personal or legal
interest that was directly and injuriously affected by the
commission's decision. We agree with the commission.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allegations
of injury. Similarly, standing exists to attempt to
vindicate arguably protected interests. . . .

‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring an action,
in other words, statutorily aggrieved, or is classically
aggrieved.'' (Internal quotation marks omitted.) Wesley
v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d
389 (2006). ‘‘[Statutory] [s]tanding concerns the question
[of] whether the interest sought to be protected
by the complainant is arguably within the zone of interests
to be protected or regulated by the statute or constitutional
guarantee in question. . . . [See] State v.
Pierson, 208 Conn. 683, 687, 546 A.2d 268 (1988), cert.
denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d
193 (1989) (standing merely requires the party to make
allegations of a colorable claim of injury to an interest
which is arguably protected or regulated by the statute
or constitutional guarantee) . . . . Med-Trans of Connecticut,
Inc. v. Dept. of Public Health & Addiction
Services, 242 Conn. 152, 160, 699 A.2d 142 (1997); see
also United Cable Television Services Corp. v. Dept. of
Public Utility Control, 235 Conn. 334, 344–45, 663 A.2d
1011 (1995) (in considering whether a plaintiff's interest
has been injuriously affected . . . we have looked to
whether the injury he complains of [his aggrievement,
or the adverse effect upon him] falls within the zone
of interests sought to be protected . . .).'' (Emphasis
in original; internal quotation marks omitted.) Broadnax
v. New Haven, 270 Conn. 133, 154–55, 851 A.2d
1113 (2004).

‘‘The fundamental test for determining [classical]
aggrievement encompasses a well-settled twofold determination:
[F]irst, the party claiming aggrievement
must successfully demonstrate a specific, personal and
legal interest in [the challenged action], as distinguished
from a general interest, such as is the concern of all
members of the community as a whole. Second, the
party claiming aggrievement must successfully establish
that this specific personal and legal interest has
been specially and injuriously affected by the [challenged
action]. . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.'' (Citation omitted; internal quotation
marks omitted.) Eder Bros., Inc. v. Wine Merchants
of Connecticut, Inc., 275 Conn. 363, 369–70, 880 A.2d
138 (2005).

‘‘[I]f the injuries claimed by the plaintiff are remote,
indirect or derivative with respect to the defendant's
conduct, the plaintiff is not the proper party to assert
them and lacks standing to do so. [When], for example,
the harms asserted to have been suffered directly by a
plaintiff are in reality derivative of injuries to a third
party, the injuries are not direct but are indirect, and
the plaintiff has no standing to assert them.'' Ganim v.
Smith & Wesson Corp., 258 Conn. 313, 347–48, 780 A.2d
98 (2001).

‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . Because standing implicates the court's
subject matter jurisdiction, the plaintiff ultimately bears
the burden of establishing standing. . . . Furthermore,
[a] trial court's determination that it lacks subject matter
jurisdiction because of a plaintiff's lack of standing
is a conclusion of law that is subject to plenary review
on appeal.'' (Citations omitted; internal quotation marks
omitted.) Seymour v. Region One Board of Education,
274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S.
1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).

As a preliminary matter, we address the commission's
contention that Me lacked standing both to bring a
zoning appeal on the ground that the commission's decision
violated RLUIPA and § 52-571b and to bring an
independent action invoking those statutes. The commission
maintains that Me lacked standing to raise such
independent claims because, as a matter of law, ‘‘there
is an insufficient causal connection between the claim
of individual members of a religious society under the
state and federal statutes and the denial of a zoning
application of a religious society of which they are
members.'' The commission further contends that ‘‘the
mere fact that the society cannot build a temple on the
[property] . . . does not preclude . . . Me from practicing
his religion.''

Weagree with the commission that, under the circumstances
of this case, Me lacked standing to assert a
claim under § 52-571b because his claim is entirely
derivative of the society's claim as the owner of the
property. The interest in building a temple on the property
is essentially a property interest. Although the commission's
decision might have ramifications for the
individual members of the society and the circumstances
under which they practice their religion, the
right to build the temple could not be asserted independently
by an individual member. If the society chose not
to appeal from the commission's denial of the society's
application for a special exception, then any independent
challenge by Me pursuant to § 52-571b would be
subject to dismissal as moot. On the other hand,
because the society has chosen to appeal from the commission's
decision on the basis of that decision's alleged
violation of § 52-571b, Me's rights under the statute will
be protected adequately without his participation.8 It
is clear, therefore, that, because any injuries that Me
suffered as a result of the commission's decision ‘‘are
in reality derivative of injuries to [the society], the injuries
are not direct but are indirect, and [he] has no
standing to assert them.'' Ganim v. Smith & Wesson
Corp., supra, 258 Conn. 348.

For the same reasons, we conclude that Me lacked
standing to assert a claim under RLUIPA. Indeed, that
statute expressly recognizes that only persons with a
property interest in the subject property are proper
parties to an action challenging the application of a
zoning regulation. RLUIPA provides in relevant part
that ‘‘[n]o government shall impose or implement a land
use regulation in a manner that imposes a substantial
burden on the religious exercise of a person . . . .'' 42
U.S.C. § 2000cc (a) (1) (2000). ‘‘Land use regulation''
is defined in 42 U.S.C. § 2000cc-5 (5) as ‘‘a zoning or
landmarking law, or the application of such a law, that
limits or restricts a claimant's use or development of
land (including a structure affixed to land), if the claimant
has an ownership, leasehold, easement, servitude,
or other property interest in the regulated land or a
contract or option to acquire such an interest.'' (Emphasis
added.) ‘‘Claimant'' is defined in 42 U.S.C. § 2000cc-
5 (1) as ‘‘a person raising a claim or defense under
[RLUIPA].''

Me acknowledges that this language ‘‘appear[s] to tie
standing to a legal interest in property affected by a
land use regulation'' but notes that a number of federal
courts have entertained claims challenging the application
of land use regulations that were brought by individuals
who had no property interest in the subject
property. See, e.g., Congregation Kol Ami v. Abington
Township, 309 F.3d 120, 124 (3d Cir. 2002) (congregation
that had entered into agreement to purchase property
and rabbi brought action challenging zoning
decision affecting property under RLUIPA); Cathedral
Church of the Intercessor v. Malverne, Docket No. CV
02-2989, 2006 U.S. Dist. LEXIS 12842, *3 (E.D.N.Y.
March 6, 2006) (landowning church, officers of church
and member of church brought action challenging application
of land use regulation under RLUIPA). We do
not find these cases to be pertinent authority because
the issue of whether the nonlandowning plaintiffs in
those cases had standing to assert a claim under RLUIPA
was not raised.

It necessarily follows from our conclusion that Me
lacked standing to bring independent actions pursuant
to § 52-571b and RLUIPA, and that he lacked standing
to bring a zoning appeal challenging the commission's
decision as violating those statutes. He was neither
statutorily aggrieved within the meaning of § 8-8 (a) (1)
nor classically aggrieved by the commission's decision.9
Accordingly, the trial court properly dismissed Me's
claims for lack of standing.

II

We next address the commission's alternate ground
for partial affirmance that the society lacked standing
to bring a claim under § 52-571b.10 The commission contends
that that statute was intended to protect the rights
guaranteed by article first, § 3, of the Connecticut constitution,
which, by its plain terms, applies only to individual
rights. We disagree.11

We turn first to the text of the relevant statutory and
constitutional provisions. General Statutes § 52-571b
(a) provides in relevant part: ‘‘The state or any political
subdivision of the state shall not burden a person's
exercise of religion under section 3 of article first of
the Constitution of the state . . . .'' Article first, § 3,
of the Connecticut constitution provides in relevant
part: ‘‘The exercise and enjoyment of religious profession
and worship, without discrimination, shall forever
be free to all persons in the state . . . .''

The commission has not cited to any authority to
support its contention that this constitutional provision
protects only individual rights, and not the rights of
religious institutions, and we cannot perceive any reason
to interpret the provision so narrowly. Rather, it is
apparent to us that ‘‘a [religious] community represents
an ongoing tradition of shared beliefs, an organic entity
not reducible to a mere aggregation of individuals.''
Corp. of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 342,
107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987) (Brennan, J.,
concurring). ‘‘Solicitude for a church's ability to [engage
in activities in furtherance of its religious mission] . . .
reflects the idea that furtherance of the autonomy of
religious organizations often furthers individual religious
freedom as well.'' Id. (Brennan, J., concurring).

Accordingly, ‘‘religious organizations . . . must be
protected by the [free exercise] clause [of the first
amendment to the United States constitution].''12 Id.,
341 (Brennan, J., concurring); see also id., 335–36 (free
exercise clause protects religious institutions from significant
government interference with religious missions);
cf. Hudson Valley Freedom Theater, Inc. v.
Heimbach, 671 F.2d 702, 706 n.4 (2d Cir.) (citing cases
in which United States Supreme Court has held that
corporation is ‘‘person'' within meaning of fourteenth
amendment), cert. denied, 459 U.S. 857, 103 S. Ct. 127,
74 L. Ed. 2d 110 (1982). This precedent construing the
analogous federal constitutional provision is persuasive.
See, e.g., State v. Ledbetter, 275 Conn. 534, 560,
881 A.2d 290 (2005) (‘‘we often rely on the United States
Supreme Court's interpretation of the amendments to
the constitution of the United States to delineate the
boundaries of the protections provided by the constitution
of Connecticut'' [internal quotation marks omitted]),
cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164
L. Ed. 2d 537 (2006).

As we have indicated, moreover, the commission
refers us to no evidence that the framers of the Connecticut
constitution intended to restrict the application
of article first, § 3, to natural persons and to exclude
corporate persons such as the society from its protection.
Accordingly, we conclude that the trial court correctly
determined that the society had standing to bring
an action under § 52-571b in order to preserve its rights
under article first, § 3, of the state constitution.

III

We next consider the society's claim that the trial
court incorrectly determined that the commission's
denial of the society's application for a special exception
did not impose a substantial burden on the society's
exercise of religion within the meaning of RLUIPA. We
conclude that the substantial burden provision of RLUIPA
does not apply to neutral and generally applicable
land use regulations that are intended to protect the
public health and safety, such as those at issue in the
present case. We further conclude that the commission
did not apply the regulations in a discriminatory
manner.

We begin with the standard of review. The scope and
application of RLUIPA's substantial burden provision
is a question of statutory interpretation. ‘‘With respect
to the construction and application of federal statutes,
principles of comity and consistency require us to follow
the plain meaning rule for the interpretation of
federal statutes because that is the rule of construction
utilized by the United States Court of Appeals for the
Second Circuit.'' (Internal quotation marks omitted.)
Dark-Eyes v. Commissioner of Revenue Services, 276
Conn. 559, 571, 887 A.2d 848, cert. denied, U.S. ,
127 S. Ct. 347, 166 L. Ed. 2d 26 (2006). ‘‘If the meaning
of the text is not plain, however, we must look to the
statute as a whole and construct an interpretation that
comports with its primary purpose and does not lead
to anomalous or unreasonable results.'' (Internal quotation
marks omitted.) Id.

RLUIPA provides in relevant part that ‘‘[n]o government
shall impose or implement a land use regulation
in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious
assembly or institution, unless the government demonstrates
that imposition of the burden on that person,
assembly, or institution . . . (A) is in furtherance of a
compelling governmental interest; and (B) is the least
restrictive means of furthering that compelling governmental
interest.'' 42 U.S.C. § 2000cc (a) (1) (2000). This
provision of RLUIPA applies in any case in which ‘‘the
substantial burden is imposed in the implementation of
a land use regulation or system of land use regulations,
under which a government makes, or has in place formal
or informal procedures or practices that permit the
government to make, individualized assessments of the
proposed uses for the property involved.'' 42 U.S.C.
§ 2000cc (a) (2) (C) (2000).

No party contends that the scope and application of
RLUIPA's ‘‘substantial burden'' provision is plain and
unambiguous as applied to the facts of this case, and
we agree that the provision reasonably cannot be characterized
as plain and unambiguous. A review of the
statute's history and purpose is, therefore, appropriate
and instructive to our determination of its meaning.
Because the statute has its roots in the decisions of the
United States Supreme Court in Sherbert v. Verner, 374
U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), and in
Employment Division, Dept. of Human Resources v.
Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876
(1990), we begin our review with a discussion of those
cases. In Sherbert, the plaintiff, Adell Sherbert, a member
of the Seventh-Day Adventist Church, was discharged
by her employer because she refused to work
on Saturdays, which was forbidden by her religion.
Sherbert v. Verner, supra, 399. Because she was unable
to find another job that would not require her to work
on Saturdays, Sherbert applied for state unemployment
benefits. Id., 399–400. The employment security commission
of the state of South Carolina determined that
she was ineligible for benefits under a state law that
disqualified workers who refused to accept ‘‘suitable
work when offered . . . .'' (Internal quotation marks
omitted.) Id., 401. The law, however, did not disqualify
all applicants for benefits who were unavailable for
work for a ‘‘personal reason . . . .'' (Internal quotation
marks omitted.) Id., 401 n.4. Sherbert claimed that the
employment security commission's determination that
she was ineligible for benefits violated her free exercise
rights under the first and fourteenth amendments to
the United States constitution. Id., 401.

The court noted that it previously had ‘‘rejected challenges
under the [f]ree [e]xercise clause to governmental
regulation of certain overt acts prompted by religious
beliefs or principles, for even when the action is in
accord with one's religious convictions, [it] is not totally
free from legislative restrictions. . . . The conduct or
actions so regulated have invariably posed some substantial
threat to public safety, peace or order.'' (Citation
omitted; internal quotation marks omitted.) Id., 403.

The court then stated that Sherbert's ‘‘conscientious
objection to Saturday work constitutes no conduct
prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision
[denying eligibility] is to withstand [her] constitutional
challenge, it must be either because her disqualification
as a beneficiary represents no infringement by the
[s]tate of her constitutional rights of free exercise, or
because any incidental burden on the free exercise of
[her] religion may be justified by a compelling state
interest in the regulation of a subject within the [s]tate's
constitutional power to regulate . . . .'' (Internal quotation
marks omitted.) Id. The court concluded that
because ‘‘[t]he ruling force[d] [Sherbert] to choose
between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one
of the precepts of her religion in order to accept work,
on the other hand,'' her free exercise rights had been
burdened. Id., 404. The court also concluded that the
denial of benefits was not justified by a compelling state
interest. Id., 406–409. Accordingly, the court concluded
that the denial of benefits violated Sherbert's free exercise
rights. Id., 410.

In Employment Division, Dept. of Human Resources
v. Smith, supra, 494 U.S. 872, the United States Supreme
Court considered whether the free exercise clause permitted
the state of Oregon ‘‘to include religiously
inspired peyote use within the reach of its general criminal
prohibition on [the] use of that drug, and thus permits
the [s]tate to deny unemployment benefits to
persons dismissed from their jobs because of such religiously
inspired use.'' Id., 874. The court noted that it
previously had applied a ‘‘balancing test'' in evaluating
such claims, under which ‘‘governmental actions that
substantially burden a religious practice must be justified
by a compelling governmental interest.'' Id., 883,
citing Sherbert v. Verner, supra, 374 U.S. 402–403. The
court also noted, however, that that test generally had
been developed and applied ‘‘in a context that lent itself
to individualized governmental assessment of the reasons
for the relevant [religiously motivated] conduct,''
and that Sherbert merely stood for the proposition that,
‘‘[when] the [s]tate has in place a system of individual
exemptions, it may not refuse to extend that system to
cases of ‘religious hardship' without compelling reason.''
Id., 884. The court in Smith concluded that the
Sherbert balancing test was inapplicable to ‘‘generally
applicable prohibitions of socially harmful conduct'';
(emphasis added) id., 885; because, ‘‘[t]o make an individual's
obligation to obey such a law contingent [on]
the law's coincidence with his religious beliefs, except
[when] the [s]tate's interest is compelling - permitting
him, by virtue of his beliefs to become a law unto himself
. . . contradicts both constitutional tradition and common
sense.'' (Citation omitted; internal quotation marks
omitted.) Id. Accordingly, the court concluded that the
first amendment did not require that peyote use for
religious purposes be exempted from the state's generally
applicable criminal prohibition of peyote use. Id.,
890.

In response to the court's decision in Smith, Congress
enacted the Religious Freedom Restoration Act of 1993
(RFRA), Pub. L. No. 103-141, 107 Stat. 1488, codified at
42 U.S.C. § 2000bb et seq. (1994). See Boerne v. Flores,
521 U.S. 507, 512, 117 S. Ct. 2157, 138 L. Ed. 2d 624
(1997). Under RFRA, the government was prohibited
from substantially burdening a person's exercise of religion,
even if the burden resulted from a rule of general
applicability, unless the government could establish
that the burden was in furtherance of a compelling
governmental interest and was the least restrictive
means of furthering that interest. Id., 515–16; see 42
U.S.C. § 2000bb-1 (a) and (b) (1994). The statute's stated
purpose was ‘‘to restore the compelling interest test as
set forth in Sherbert v. Verner, [supra] 374 U.S. 398
. . . .'' 42 U.S.C. § 2000bb (b) (1) (1994).

This congressional attempt to force the states to follow
Sherbert was short-lived, however. In Boerne, the
United States Supreme Court held that Congress had no
power under the enforcement clause of the fourteenth
amendment; see U.S. Const., amend. XIV, § 5; to enact
‘‘a substantive change in constitutional protections.''
Boerne v. Flores, supra, 521 U.S. 532. In support of its
conclusion that RFRA represented an unconstitutional
attempt to expand the scope of the right protected by
the free exercise clause, the court stated that, ‘‘[i]n most
cases, the state laws to which RFRA applies are not
ones which will have been motivated by religious bigotry.
. . . RFRA's substantial-burden test . . . is not
even a discriminatory-effects or disparate-impact test. It
is a reality of the modern regulatory state that numerous
state laws, such as the zoning regulations at issue [in
Boerne], impose a substantial burden on a large class
of individuals. When the exercise of religion has been
burdened in an incidental way by a law of general application,
it does not follow that the persons affected have
been burdened any more than other citizens, let alone
burdened because of their religious beliefs.'' (Citation
omitted.) Id., 535. The court concluded, therefore, that
RFRA was unconstitutional as applied to the states. See
id., 532, 536.

Congress responded to this development by enacting
RLUIPA. See Sts. Constantine & Helen Greek Orthodox
Church, Inc. v. New Berlin, 396 F.3d 895, 897 (7th Cir.
2005). In enacting RLUIPA, Congress sought ‘‘to avoid
RFRA's fate by limiting the scope of [RLUIPA] to (1)
state regulations . . . that affect commerce, (2) programs
that receive federal financial assistance, and (3)
programs under which the agency makes ‘individualized
assessments of the proposed uses for the property
involved.' '' Id. By imposing the last limitation, Congress
intended to codify the United States Supreme Court's
decision in Sherbert v. Verner, supra, 374 U.S. 398. Sts.
Constantine & Helen Greek Orthodox Church, Inc. v.
New Berlin, supra, 897. Congress believed that Boerne
had reaffirmed Sherbert ‘‘insofar as [Sherbert held] that
a state that has a system for granting individual exemptions
from a general rule must have a compelling reason
to deny a religious group an exemption that is sought
on the basis of hardship or, in the language of [RLUIPA],
of ‘a substantial burden on . . . religious exercise.'
. . . Sherbert was an interpretation of the [c]onstitution,
and so the creation of a federal judicial remedy
for conduct contrary to its doctrine [was believed by
Congress to be] an uncontroversial use of section 5 [of
the fourteenth amendment].''13 (Citation omitted.) Id.
Not surprisingly, the meaning of the phrase ‘‘substantial
burden'' set forth in RLUIPA has been the subject
of much litigation. Many courts that have considered
the issue have concluded that, to avoid the potential
constitutional infirmity that was fatal to RFRA, the
phrase ‘‘substantial burden'' cannot be interpreted in a
manner that would grant a broader right to religious
exercise than the courts have recognized under the free
exercise clause.14 See, e.g., Murphy v. Zoning Commission,
402 F.3d 342, 350 (2d Cir. 2005) (‘‘[i]n enacting
RLUIPA, Congress endeavored to codify existing [f]ree
[e]xercise jurisprudence'');15 Midrash Sephardi, Inc. v.
Surfside, 366 F.3d 1214, 1237 (11th Cir. 2004) (because
RLUIPA codifies existing first amendment and equal
protection rights against state action, it is appropriate
and constitutional use of Congress' authority under § 5
of fourteenth amendment), cert. denied, 543 U.S. 1146,
125 S. Ct. 1295, 161 L. Ed. 2d 106 (2005); Episcopal
Student Foundation v. Ann Arbor, 341 F. Sup. 2d 691,
701 (E.D. Mich. 2004) (‘‘RLUIPA's history demonstrates
that Congress intended to leave intact the traditional
‘substantial burden' test, as defined by the Supreme
Court's free exercise jurisprudence''); Vineyard Christian
Fellowship of Evanston, Inc. v. Evanston, 250 F.
Sup. 2d 961, 991 (N.D. Ill. 2003) (‘‘[t]he history of [RLUIPA]
demonstrates that Congress did not intend to
change traditional Supreme Court jurisprudence on the
definition of substantial burden''); Corp. of the Presiding
Bishop of the Church of Jesus Christ of Latter-Day
Saints v. West Linn, 338 Or. 453, 464, 111 P.3d 1123
(2005) (‘‘Congress used the term ‘substantial burden'
because that was the term that the [United States
Supreme] Court had used in Sherbert and other [f]ree
[e]xercise cases decided before Smith''). See generally
Legal Services Corp. v. Velazquez, 531 U.S. 533, 545,
121 S. Ct. 1043, 149 L. Ed. 2d 63 (2001) (‘‘[i]t is well
understood that when there are two reasonable constructions
for a statute, yet one raises a constitutional
question, the [c]ourt should prefer the interpretation
which avoids the constitutional issue'').

Consistent with this view, a number of courts have
adopted a ‘‘substantial burden'' standard that reflects
the first amendment principle that the government may
not entirely exclude religious uses from a jurisdiction.

In Civil Liberties for Urban Believers v. Chicago, 342
F.3d 752 (7th Cir. 2003), cert. denied, 541 U.S. 1096, 124
S. Ct. 2816, 159 L. Ed. 2d 262 (2004), for example, the
Court of Appeals for the Seventh Circuit concluded
that, under existing first amendment jurisprudence, the
zoning ordinances under review did not impose a substantial
burden on local religious institutions because
‘‘they [did] not render impracticable the use of real
property in [the jurisdiction] for religious exercise,
much less discourage churches from locating or
attempting to locate [there].''16 Id., 761; see also Episcopal
Student Foundation v. Ann Arbor, supra, 341 F.
Sup. 2d 704 (religious exercise was not substantially
burdened by denial of permit to demolish existing structure
and to build new religious facility when ‘‘there
[was] no indication that [the religious institution was]
precluded from fulfilling its religious mission through
worship as a whole . . . in other locations throughout
the city''), citing Lakewood, Ohio Congregation of Jehovah's
Witnesses, Inc. v. Lakewood, 699 F.2d 303, 307
(6th Cir.), cert. denied, 464 U.S. 815, 104 S. Ct. 72, 78
L. Ed. 2d 85 (1983); Greater Bible Way Temple v. Jackson,
478 Mich. 373, 401–402, 733 N.W.2d 734 (2007)
(city's refusal to rezone property to allow construction
of religious facility was not substantial burden on religious
institute when other land in jurisdiction was
zoned for that use).17

RLUIPA, however, contains a prohibition against
excluding or unreasonably limiting religious uses in a
jurisdiction that is separate and distinct from its ‘‘substantial
burden'' provision. See 42 U.S.C. § 2000cc (b)
(3) (2000). As at least one court has recognized,
although an unreasonable limitation on religious uses
within a jurisdiction undoubtedly would impose a substantial
burden on religious institutions, to interpret
the ‘‘substantial burden'' provision as being coextensive
with the ‘‘exclusion and limits'' provision would be to
render one of the provisions superfluous. See Midrash
Sephardi, Inc. v. Surfside, supra, 366 F.3d 1227
(rejecting definition of ‘‘substantial burden'' adopted by
court in Civil Liberties for Urban Believers because it
would render ‘‘exclusion and limits'' provision of 42
U.S.C. § 2000cc [b] [3] meaningless); cf. Sts. Constantine
& Helen Greek Orthodox Church, Inc. v. New
Berlin, supra, 396 F.3d 899–901 (under particular circumstances
of case, church was not required to show
that it was excluded from entire jurisdiction).18

In addition, the express language of RLUIPA protects
a broader free exercise right than that recognized by
the United States Supreme Court. Unlike RFRA, which
defines ‘‘exercise of religion'' as ‘‘the exercise of religion
under the [f]irst [a]mendment to the [United States]
[c]onstitution''; 42 U.S.C. § 2000bb-2 (4) (1994); RLUIPA
defines ‘‘religious exercise'' to include ‘‘[t]he use, building,
or conversion of real property for the purpose of
religious exercise'' with respect to ‘‘the person or entity
that uses or intends to use the property for that purpose.''
19 42 U.S.C. § 2000cc-5 (7) (B) (2000). ‘‘Religious
exercise'' also includes ‘‘any exercise of religion,
whether or not compelled by, or central to, a system
of religious belief.'' 42 U.S.C. § 2000cc-5 (7) (A) (2000).

These statutory provisions are in contrast to existing
first amendment jurisprudence, which holds that ‘‘building
and owning a church is a desirable accessory of
worship, not a fundamental tenet of the [c]ongregation's
religious beliefs'' and, therefore, do not constitute the
exercise of religion within the meaning of the free exercise
clause. Lakewood, Ohio Congregation of Jehovah's
Witnesses, Inc. v. Lakewood, supra, 699 F.2d 307;20 cf.
Employment Division, Dept. of Human Resources v.
Smith, supra, 494 U.S. 885–89 (because courts are
barred from determining centrality of religious belief or
practice, government can enforce ‘‘generally applicable
prohibitions of socially harmful conduct'' regardless of
whether conduct is central to exercise of religion).

Thus, ‘‘whatever the substantial burden test required
prior to the passage of RLUIPA, the statute substantially
modified and relaxed the definition of ‘religious exercise.'
'' Grace United Methodist Church v. Cheyenne,
451 F.3d 643, 663 (10th Cir. 2006); see also Civil Liberties
for Urban Believers v. Chicago, supra, 342 F.3d 760
(Congress intended ‘‘to expand the concept of religious
exercise contemplated both in decisions discussing the
precursory RFRA . . . and in traditional [f]irst
[a]mendment jurisprudence'' [citation omitted]). In
addition, it is clear that, in adopting this broad statutory
definition of ‘‘religious exercise'' set forth in RLUIPA
and eliminating any centrality test, Congress necessarily
contemplated that a broader range of governmental
conduct could be prohibited as imposing a ‘‘substantial
burden'' on religious exercise than the range of conduct
that could be prohibited under the Supreme Court's
existing free exercise clause jurisprudence. Cf. Employment
Division, Dept. of Human Resources v. Smith,
supra, 887–88 n.4 (‘‘‘[c]onstitutionally significant burden'
would seem to be ‘centrality' under another
name''); id. (‘‘inquiry into ‘severe impact' is no different
from inquiry into centrality''); Civil Liberties for Urban
Believers v. Chicago, supra, 761 (expanded definition
of ‘‘religious exercise'' could expand meaning of ‘‘substantial
burden''); Elsinore Christian Center v. Lake
Elsinore, 291 F. Sup. 2d 1083, 1091 (C.D. Cal. 2003)
(‘‘[b]ecause use of land is ‘religious exercise' under
RLUIPA, there can be no doubt that the [c]ity's action
denying use of the [s]ubject [p]roperty is a ‘substantial
burden' on [religious exercise]'' [emphasis in original]).

On the other hand, if RLUIPA's broader definition of
religious exercise is simply substituted for the scope
of the right as contemplated in the first amendment
cases, ‘‘the meaning of ‘substantial burden on religious
exercise' could be read to include the effect of any
regulation that inhibits or constrains the use, building,
or conversion of real property for the purpose of religious
exercise.'' Civil Liberties for Urban Believers v.
Chicago, supra, 342 F.3d 761. Under such an interpretation,
‘‘the slightest obstacle to [the construction and
use of religious facilities] incidental to the regulation
of land use - however minor the burden it were to
impose - could then constitute a burden sufficient to
trigger RLUIPA's requirement that the regulation
advance a compelling governmental interest by the least
restrictive means.'' Id.; see also Petra Presbyterian
Church v. Northbrook, 489 F.3d 846, 851 (7th Cir. 2007)
(‘‘[u]nless the requirement of substantial burden is
taken seriously, the difficulty of proving a compelling
governmental interest will free religious organizations
from zoning restrictions of any kind''), cert. denied,
U.S. (76 U.S.L.W. 3347, January 7, 2008).21 To give
such a broad meaning to the phrase ‘‘substantial burden''
would be constitutionally suspect under Boerne
because it would be in direct conflict with the holding
of Smith that generally applicable laws that are
intended to protect the public health and safety constitutionally
may be applied to religious conduct without
being justified by a compelling government interest,
regardless of the burden that the laws impose on such
conduct. See Employment Division, Dept. of Human
Resources v. Smith, supra, 494 U.S. 885; see also Boerne
v. Flores, supra, 521 U.S. 535 (‘‘[w]hen the exercise of
religion has been burdened in an incidental way by a
law of general application, it does not follow that the
persons affected have been burdened any more than
other citizens, let alone burdened because of their religious
beliefs''); Greater Bible Way Temple v. Jackson,
supra, 478 Mich. 408 n.27 (conclusion that, under RLUIPA,
religious institution need not abide by generally
applicable, religion-neutral zoning ordinance unless justified
by compelling governmental interest would be
inconsistent with Smith). Thus, interpreting the substantial
burden provision of RLUIPA as creating a significantly
broader right than that guaranteed by the free
exercise clause would render the statute constitutionally
suspect under Boerne. On the other hand, interpreting
the provision as creating a right with precisely the
same scope and contours as that guaranteed by the
free exercise clause would ignore the statute's express
terms and effectively render it superfluous.

We conclude that the key to this interpretive quandary
is not to be found, as the parties and the trial court
in the present case assumed, in the first amendment
jurisprudence defining what governmental conduct
constitutes a ‘‘substantial burden'' on the free exercise
of religion, but in the case law addressing the question
of when the substantial burden provision applies to
governmental conduct in the first instance. As we have
indicated, under 42 U.S.C. § 2000cc (a) (2) (C), the substantial
burden provision of RLUIPA applies only to
cases in which the ‘‘government makes, or has in place
formal or informal procedures or practices that permit
the government to make, individualized assessments of
the proposed uses for the property involved.'' As we
also have indicated, the ‘‘individualized assessment''
language of RLUIPA traces its roots to the holding of
Smith that the Sherbert balancing test applied only ‘‘in
a context that lent itself to individualized governmental
assessment of the reasons for the relevant conduct.''
(Emphasis added.) Employment Division, Dept. of
Human Resources v. Smith, supra, 494 U.S. 884. Under
Sherbert, when the government has the discretion to
exempt certain conduct from the applicable law for
secular reasons, the government cannot refuse to
extend the exemption to similar conduct that is religiously
motivated. See id.

‘‘[S]everal federal courts have held that land use regulations,
i.e., zoning ordinances, are neutral and generally
applicable notwithstanding that they may have individualized
procedures for obtaining special use permits or
variances.'' (Internal quotation marks omitted.) Grace
United Methodist Church v. Cheyenne, supra, 451 F.3d
651. ‘‘Indeed, in the land use context, the Sixth, Seventh,
Eighth, and Eleventh Circuits have rejected a per se
approach and instead apply a fact-specific inquiry to
determine whether the regulation at issue was motivated
by discriminatory animus, or whether the facts
support an argument that the challenged rule is applied
in a discriminatory fashion that disadvantages religious
groups or organizations. See, e.g., Civil Liberties for
Urban Believers v. [Chicago, supra, 342 F.3d 764–65]
(ordinance permitting churches in all residential areas
but requiring special use approval to operate churches
in commercial and business areas and limiting church
operation in manufacturing areas held neutral [law] of
general applicability); First Assembly of God of Naples
[Florida, Inc.] v. Collier County, 20 F.3d 419, 423–24
(11th Cir. 1994) (city's ordinance prohibiting homeless
shelters in certain areas held neutral and of general
applicability because motivated by health and safety
concerns, applied to both church and secular group
homes and did not completely prohibit operation of
homeless shelters) [cert denied, 513 U.S. 1080, 115 S.
Ct. 730, 130 L. Ed. 2d 634 (1995)]; Cornerstone Bible
Church v. [Hastings], 948 F.2d 464, 472 (8th Cir. 1991)
(zoning ordinance excluding churches and other nonprofits
from city's central business district had no
impact on religious belief and was general law applying
to all land use in city).'' Grace United Methodist Church
v. Cheyenne, supra, 651; see also Westchester Day
School v. Mamaroneck, 504 F.3d 338, 350 (2d Cir. 2007)
(religious organizations are precluded ‘‘from demonstrating
substantial burden in the neutral application
of legitimate land use restrictions''); San Jose Christian
College v. Morgan Hill, 360 F.3d 1024, 1031 (9th Cir.
2004) (‘‘[zoning] law is one of neutrality and general
applicability if it does not aim to infringe [on] or restrict
practices because of their religious motivation'' [internal
quotation marks omitted]); Mount Elliott Cemetery
Assn. v. Troy, 171 F.3d 398, 405 (6th Cir. 1999) (‘‘[t]he
requirement that the law be of general applicability
protects against unequal treatment which results when
a legislature decides that the governmental interests it
seeks to advance are worthy of being pursued only
against conduct with a religious motivation'' [internal
quotation marks omitted]); Rector, Wardens & Members
of the Vestry of St. Bartholomew's Church v. New
York, 914 F.2d 348, 354–55 (2d Cir. 1990) (without proof
that landmark preservation commission applied landmark
law to church in discriminatory manner, law was
neutral and generally applicable), cert. denied sub nom.

Committee to Oppose the Sale of St. Bartholomew's
Church, Inc. v. Rector, Wardens & Members of the Vestry
of St. Bartholomew's Church, 499 U.S. 905, 111 S.
Ct. 1103, 113 L. Ed. 2d 214 (1991). ‘‘According to these
courts, although zoning laws may permit some individualized
assessment for variances, they are generally
applicable if they are motivated by secular purposes
and impact equally all land owners in the city . . . .''
Grace United Methodist Church v. Cheyenne, supra,
651.22

We agree with these courts that a zoning regulation
that is applicable without discrimination to all property
owners in a jurisdiction and is intended to protect the
public health and safety does not constitute an ‘‘individualized
assessment'' under existing first amendment
jurisprudence. In Sherbert, which employed the ‘‘individualized
assessment'' rule that RLUIPA was intended
to codify; see Employment Division, Dept. of Human
Resources v. Smith, supra, 494 U.S. 884; the government
had the discretion to grant an exemption from the unemployment
law's availability requirement if the applicant
was unavailable for certain personal reasons but to
withhold the exemption if the personal reason was
related to religion. Sherbert v. Verner, supra, 374 U.S.
401–402 n.4. Thus, the government was authorized to
treat applicants differently on the basis of the motivation
for their conduct, and to treat religiously motivated
conduct less favorably.23 Moreover, the eligibility rules
for unemployment benefits under review in that case
were not intended to protect the public health and
safety. Id., 403 (distinguishing unemployment law from
laws governing ‘‘substantial threat to public safety,
peace of order''). If a zoning board has no discretion
to scrutinize the reasons for land use applications and to
exempt certain secular uses from the zoning regulations
while withholding exemptions for similarly intense religious
uses, then Sherbert is inapplicable. We further
note that a joint statement issued by the sponsors of
the bill that ultimately became RLUIPA specifically provides
that ‘‘[t]his [a]ct does not provide religious institutions
with immunity from land use regulation, nor does
it relieve religious institutions from applying for variances,
special permits or exceptions, hardship
approval, or other relief provision in land use regulations,
where available without discrimination or
unfair delay.'' (Emphasis added.) 146 Cong. Rec. 16,700
(2000), joint statement of Senators Orrin Hatch and
Edward Kennedy. Because RLUIPA's substantial burden
provision applies only when the government has
made an ‘‘individualized [assessment] of the proposed
[use]''; 42 U.S.C. § 2000cc (a) (2) (C) (2000); we conclude
that the provision applies only when the government
has the discretion to apply a land use regulation
in a manner that discriminates against religious institutions
in general or against a particular religion or
denomination.24

In the present case, the provisions of the town's regulations
allowing religious facilities to be built in a residential
zone by special exception treat such uses more,
not less, favorably than certain other nonresidential
uses that are not allowed by special exception. Moreover,
although the commission has some discretion to
determine whether a proposed specially permitted use
is consistent with residential use, the regulations do
not grant the commission the discretion to apply the
standards differently to religious facilities than it
applies them to the other uses allowed by special exception,
such as clubs, private schools, seasonal camps,
certain public utility buildings, hospitals, sanitary landfills,
nurseries and horse boarding stables. See Newtown
Zoning Regs., § 4.06 et seq. Rather, in reviewing
each application for a special exception, the commission
considers ‘‘the impact of such uses and structures
upon the neighborhood and surrounding area and upon
the public health, safety convenience and welfare''; id.,
§ 8.04; and certain other criteria unrelated to the specific
nature of the proposed use. See id., § 8.04.700 et
seq. We therefore conclude that, because the town's
zoning regulations do not allow for an ‘‘individualized
assessment,'' as that term is used in first amendment
jurisprudence, the substantial burden provision of 42
U.S.C. § 2000cc (a) (1) does not apply to the society's
claim.

We further conclude that record does not support
a finding that the commission abused the discretion
granted to it under the regulations by applying the regulations
in a discriminatory manner, thereby violating 42
U.S.C. § 2000cc (b) (2).25 See footnote 2 of this opinion.

The society claims that the commission's denial of its
application on the basis of the temple's Asian design
and the fact that Buddhist festivals would be celebrated
on the property demonstrate its discriminatory intent.

Upon a careful review of the record, however, we are
satisfied that the commission's concerns were motivated
not by religious bigotry but by neutral considerations
that it would apply equally to any proposed use of
the property. It does not follow from the commission's
conclusions that the design was not in harmony with
the other buildings in the area and that the festivals
would be unduly disruptive that the commission or
the neighboring residents were biased against religious
uses in general or Buddhism in particular, and nothing
else in the record supports such a finding. Indeed, a
number of residents who strongly opposed the granting
of the special exception expressed their strong admiration
for the members of the society, their hope that the
monks would continue to live on the property and their
hope that the society would be able to find a more
suitable location within the town to build a temple
for large gatherings. The commission expressed similar
sentiments in its decision denying the application, stating
that ‘‘[d]iversity of religion should be encouraged
in Newtown,'' and expressing its hope that the society
‘‘could find property more suitable to [its] needs.'' Cf.
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 541, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)
(concluding that ordinance was motivated by animosity
toward Santeria religion when record demonstrated
that various city officials had made critical statements
to public about Santeria religion and had indicated that
devotees of that religion were ‘‘in violation of everything
this country stands for,'' that Bible did not allow Santeria
practices, that Santeria religion was ‘‘a sin, foolishness,
an abomination to the Lord, and the worship of
demons,'' and that community would not tolerate religious
practices that were abhorrent to citizens [internal
quotation marks omitted]). Nothing in the record establishes
that those comments, or the reasons that the
commission gave for denying the society's application,
were pretextual or otherwise designed to conceal an
unlawful discriminatory intent. Accordingly, we reject
the society's claim that the commission did not apply
the zoning regulations in a neutral manner.

In sum, we conclude that the ‘‘substantial burden''
provision of RLUIPA does not apply under the facts of
this case. Therefore, we reject the society's claim that
the commission's denial of its application for a special
exception violated that provision of RLUIPA.

IV

The society further claims that the commission's
denial of its application for a special exception unlawfully
burdened the society's exercise of religion under
§ 52-571b. The society contends that § 52-571b provides
broader protection to religious exercise than RLUIPA
because the state statute prohibits governmental conduct
that burdens the exercise of religion under the
state constitution, whereas RLUIPA bars conduct that
imposes a substantial burden on the right to the free
exercise of religion under the first amendment. See
Murphy v. Zoning Commission, 289 F. Sup. 2d 87, 114
(D. Conn. 2003) (§ 52-571b ‘‘covers more conduct than
RLUIPA''), vacated on other grounds, 402 F.3d 342 (2d
Cir. 2005). We conclude that, as applied in the land use
context, § 52-571b is no broader than RLUIPA, and,
therefore, § 52-571b does not apply to the society's
claim.

The scope and meaning of the word ‘‘burden'' as used
in § 52-571b is a question of statutory interpretation
over which our review is plenary. See, e.g., Barry v.
Quality Steel Products, Inc., 280 Conn. 1, 8, 905 A.2d
55 (2006). ‘‘The process of statutory interpretation
involves the determination of the meaning of the statutory
language as applied to the facts of the case, including
the question of whether the language does so apply.''
(Internal quotation marks omitted.) Id.

We begin with the relevant statutory language. General
Statutes § 52-571b provides in relevant part: ‘‘(a)
The state or any political subdivision of the state shall
not burden a person's exercise of religion under section
3 of article first of the Constitution of the state even if
the burden results from a rule of general applicability,
except as provided in subsection (b) of this section.

‘‘(b) The state or any political subdivision of the state
may burden a person's exercise of religion only if it
demonstrates that application of the burden to the person
(1) is in furtherance of a compelling governmental
interest, and (2) is the least restrictive means of furthering
that compelling governmental interest. . . .''

Our resolution of the society's claim requires us to
determine the meaning of the terms ‘‘burden'' and ‘‘exercise
of religion,'' as they are used in § 52-571b. Because
neither of those terms has a meaning that is plain and
unambiguous as applied to the facts of this case, we
look to the statute's purpose and history to ascertain
their meaning.26 Like RFRA, § 52-571b was enacted in
response to the United States Supreme Court's decision
in Employment Division, Dept. of Human Resources
v. Smith, supra, 494 U.S. 885, in which the court held
that a generally applicable prohibition against socially
harmful conduct does not violate the free exercise
clause, regardless of whether the law burdens religious
exercise. See Conn. Joint Standing Committee Hearings,
Judiciary, Pt. 4, 1993 Sess., p. 1142, testimony of
attorney John King; 36 S. Proc., Pt. 8, 1993 Sess., p.
2780, remarks of Senator George C. Jepsen; 36 H.R.
Proc., Pt. 14, 1993 Sess., pp. 4922–24, 4927, remarks of
Representatives Richard D. Tulisano, Robert M. Ward
and Michael J. Jarjura. Also like RFRA, the purpose of
§ 52-571b was to restore the balancing standard, articulated
by the United States Supreme Court in Sherbert
v. Verner, supra, 374 U.S. 403, under which a law that
burdens religious exercise must be justified by a compelling
governmental interest.27 See 36 S. Proc., supra,
p. 2780, remarks of Senator Jepsen; 36 H.R. Proc., supra,
p. 4943, remarks of Representative Dale W. Radcliffe;
see also 36 S. Proc., supra, p. 2785, remarks of Senator
Jepsen (‘‘this bill does not expand, contract or alter
the ability of a claimant to obtain relief in a manner
consistent with the [United States] Supreme Court's
free exercise . . . jurisprudence under the compelling
interest test prior to . . . Smith'').

As we have explained; see part III of this opinion;
prior to Smith, no court had held, under the Sherbert
balancing test, that erecting a place of worship on a
particular property constitutes the exercise of religion
for purposes of the first amendment. Indeed, the great
weight of authority is to the contrary.28 See footnote 20
of this opinion. The society does not claim that the
state constitution provides broader protection in this
regard than the federal constitution. We further note
that, unlike RLUIPA; see 42 U.S.C. § 2000cc-5 (7) (B)
(2000); § 52-571b does not expressly define religious
exercise to include the use or improvement of real
property for the purpose of religious exercise. Finally,
there is no indication in the legislative history of § 52-
571b that the legislature harbored any special concerns
about a statewide pattern of official discrimination
against religious uses in the zoning and land use context,
or that the legislature intended to provide heightened
protection to religious land uses.

Accordingly, although we agree with the conclusion
of the District Court in Murphy v. Zoning Commission,
supra, 289 F. Sup. 2d 114, that § 52-571b applies to some
forms of government conduct to which RLUIPA does
not apply, we do not believe either that the legislature
intended that the construction of a place of worship
would constitute religious exercise or that, in the
absence of evidence of discrimination against a particular
religious use or religious uses in general, the application
of land use regulations that are intended to protect
the public health and safety to such a use generally
would be subject to strict scrutiny under the statute.
We therefore reject the society's claim that § 52-571b
provides broader protection than RLUIPA in this context
and conclude that § 52-571b does not apply under
the circumstances of this case.

V

Having concluded that the trial court correctly determined
that the commission's denial of the society's
application for a special exception did not violate either
RLUIPA or § 52-571b, we next must determine whether
the court correctly determined that the commission's
decision was supported by substantial evidence under
the principles applicable to traditional zoning appeals.
We conclude that it did.29

We begin our analysis by setting forth the standard
of review for the denial of an application for a special
exception. ‘‘We previously have observed that [a] special
exception allows a property owner to use his property
in a manner expressly permitted by the local zoning
regulations. . . . Nevertheless, special exceptions,
although expressly permitted by local regulations, must
satisfy [certain conditions and] standards set forth in
the zoning regulations themselves as well as the conditions
necessary to protect the public health, safety,
convenience and property values [as required by General
Statutes § 8-2]. . . . Moreover, we have noted that
the nature of special exceptions is such that their precise
location and mode of operation must be regulated
because of the topography, traffic problems, neighboring
uses, etc., of the site. . . . We also have recognized
that, if not properly planned for, [such uses] might
undermine the residential character of the neighborhood.
. . . Thus, we have explained that the goal of
an application for a special exception is to seek permission
to vary the use of a particular piece of property
from that for which it is zoned, without offending the
uses permitted as of right in the particular zoning district.''
(Internal quotation marks omitted.) Municipal
Funding, LLC v. Zoning Board of Appeals, 270 Conn.
447, 453–54, 853 A.2d 511 (2004).

‘‘In reviewing a decision of a zoning board, a reviewing
court is bound by the substantial evidence rule,
according to which . . . [c]onclusions reached by [a
zoning] commission must be upheld by the trial court
if they are reasonably supported by the record. The
credibility of the witnesses and the determination of
issues of fact are matters solely within the province of
the [commission]. . . . The question is not whether the
trial court would have reached the same conclusion
. . . but whether the record before the [commission]
supports the decision reached. . . . If a trial court finds
that there is substantial evidence to support a zoning
board's findings, it cannot substitute its judgment for
that of the board. . . . If there is conflicting evidence
in support of the zoning commission's stated rationale,
the reviewing court . . . cannot substitute its judgment
as to the weight of the evidence for that of the
commission. . . . The agency's decision must be sustained
if an examination of the record discloses evidence
that supports any one of the reasons given.''
(Citations omitted; internal quotation marks omitted.)
Id., 453. With these principles in mind, we address in
turn each of the commission's reasons for denying the
society's application for a special exception.

A

Temple Design

With respect to the commission's conclusion that the
design of the proposed temple violated § 8.04.770 of
the regulations because it was not in harmony with the
design of other buildings in the vicinity, we agree with
the trial court that this was not a valid reason for denying
the application. ‘‘[C]ourts have been reluctant to
uphold the strict enforcement, against religious uses,
of regulations that require special exception uses to be
in architectural harmony with the surrounding neighborhood.''
Daughters of St. Paul, Inc. v. Zoning Board
of Appeals, 17 Conn. App. 53, 67, 549 A.2d 1076 (1988).
As the trial court aptly noted in the present case, strict
enforcement of such regulations effectively ‘‘would prevent
[any] ‘nontraditional' non-Judeo/Christian religion
from building its temple in the town . . . .''

Our review of the architectural renderings that the
society had submitted to the commission reveals that
the proposed temple is a two-story building with stone
facing and a low pagoda-type tile roof. Although the
design concededly contains certain details that are not
typical of buildings found in a rural New England setting,
the proposed temple is generally attractive, relatively
modest and not entirely out of character for a
place of religious worship in such a neighborhood.
Accordingly, we agree with the society that the trial
court correctly concluded that the design of the proposed
temple did not constitute a valid reason for denying
the society's application for a special exception.

B

Traffic Considerations

We next address the commission's conclusion that
the society's application should be denied because the
proposed use of the property would create additional
traffic congestion and hazards on Boggs Hill Road. The
following additional facts and procedural history are
relevant to our review of this issue. At the October 17,
2002 public hearing on the society's application, Fred
M. Greenberg, a traffic engineer, spoke on behalf of the
society and submitted a written traffic evaluation in
which he stated that a ‘‘volume count performed by the
[state] [d]epartment of [t]ransportation . . . in 2001
. . . indicated that in the area of the subject site, Boggs
Hill Road carried an [a]verage [d]aily [t]raffic . . . volume
of [1400] trips. The highest hourly traffic volume of
approximately 160 vehicles, or about one every [twentytwo]
seconds, occurred between [8 and 9 a.m.].'' The
proposed use of the property was ‘‘estimated to generate
[forty to fifty] trips per day, some of which already
exist. An alternate development for this size . . .
would be four single family homes as zoned. This development
would generate about [forty] trips per day.''
Greenberg also stated that, ‘‘[d]uring a ‘special event'
weekend day, which [is] planned to occur only five
times per year, it is estimated that up to 300 trips [or
150 arrivals and 150 departures] may be generated over
the course of the day,'' with a peak hourly flow of about
seventy-five vehicles arriving and seventy-five vehicles
departing. Greenberg noted that, ‘‘[f]or purposes of
comparison to an existing traffic generator, the Head
O'Meadow Elementary School, located on Boggs Hill
Road to the north . . . would be expected to generate
[between 500 and 600] daily trips, and peak hour flows
in the [125 to 175] vehicle range.'' Greenberg stated
that, in his opinion, ‘‘the traffic demand from [the proposed
use] can be readily accommodated.''

On the basis of statements and letters submitted to
the commission by area residents, a commission member
and a town selectman, the commission found that
‘‘Boggs Hill Road is a small paved two-lane country
road characterized as winding and narrow.'' The sole
entrance from the society's property to the road ‘‘is
located in the middle of a narrow ‘S' shaped section''
of the road. ‘‘[T]he topography of the curves is notable
in that [they] are on a slope, one of the curves is greater
than the expected [ninety] degrees and sand/water/ice
accumulate on the street. In addition the road is only
[twenty-two] feet wide at this point limiting the options
for a [driver] attempting to avoid an accident.'' The
town police receive reports of approximately one motor
vehicle accident on the road per month, but ‘‘many
accidents take place during the course of the year . . .
such as destroyed mailboxes and ‘fender benders' that
go unreported to the police.'' The commission expressed
concern that ‘‘during a [f]estival's peak traffic
period when multiple cars arrive [at the society's property]
at approximately the same time [as] each other
from one direction or the other or even both directions
at once then parking will begin to detain and slow other
arriving vehicles . . . .'' Because of the narrow width
of the road and limited visibility around the curve, other
vehicles traveling along the road would not have sufficient
time to stop safely.

The commission also determined that the society's
traffic expert had not made himself ‘‘familiar with the
actual use of the road and did not conduct an actual
traffic volume survey at the site. Instead he conducted
the survey at an elementary school several miles from
the site.'' The commission ‘‘believe[d] that less than
[one] half of these vehicles from the school pass the
temple site, so the potential increase in 150 cars [per]
hour peak travel at the site will be 100 to 200 [percent]
versus the forecasted insignificant increase.'' In addition,
the commission concluded that Greenberg had
underestimated the dangerous nature of the location
on Boggs Hill Road and that his ‘‘assumptions concerning
use during festival days were inconsistent with other
information provided by the [society] regarding the
number of cars.''30 Accordingly, the commission concluded
that the proposed use of the property did not
satisfy the requirements of § 8.04.740 of the regulations.

The trial court determined that the record did not
support the commission's conclusion because ‘‘[a] religious
structure is a permitted use, [and] an increase in
traffic does result from [the] same no matter where the
church, synagogue or temple is located.'' Quoting from
the opinion of the Appellate Court in Bethlehem Christian
Fellowship, Inc. v. Planning & Zoning Commission,
73 Conn. App. 442, 470, 807 A.2d 1089, cert. denied,
262 Conn. 928, 814 A.2d 379 (2002), the court further
concluded that, in any event, ‘‘a land use agency cannot
deny an application for a permitted use because of offsite
traffic considerations.'' (Internal quotation marks
omitted.) Finally, the court determined that the statements
submitted by various persons to the commission
‘‘regarding the dangers posed by additional traffic under
the worst case scenario were based on speculation and
did not rise to the level of substantial evidence.''
Although we disagree that the commission was required
to disregard off-site traffic considerations, we nevertheless
agree with the trial court that the record does
not support the commission's conclusion that those
considerations warranted its denial of the society's
application.

This court recently has reaffirmed the principle that,
when a landowner has submitted an application for a
permitted use, the zoning commission may consider
off-site traffic conditions ‘‘only for the limited purpose
of reviewing the internal traffic circulation on the site
and determining whether the location of the proposed
[roads and driveways] would minimize any negative
impact of additional traffic to the existing traffic . . . .''
Pansy Road, LLC v. Town Plan&Zoning Commission,
283 Conn. 369, 380, 926 A.2d 1029 (2007); see also Friedman
v. Planning & Zoning Commission, 222 Conn.
262, 267, 608 A.2d 1178 (1992) (volume of traffic generated
by proposed office building was not proper basis
for denying site plan application); TLC Development,
Inc. v. Planning & Zoning Commission, 215 Conn.
527, 529, 577 A.2d 288 (1990) (language of town zoning
regulations did not permit off-site traffic considerations
to serve as basis for denying site plan application); Reed
v. Planning & Zoning Commission, 208 Conn. 431,
432, 544 A.2d 1213 (1988) (inadequacy of local roads
was not proper basis for denying subdivision application).

This is because ‘‘[t]he designation of a particular
use of property as a permitted use establishes a conclusive
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.'' (Emphasis in
original; internal quotation marks omitted.) Pansy
Road, LLC v. Town Plan & Zoning Commission, supra,
376. This court has limited the application of these
principles, however, to site plan approvals and subdivision
applications that involve uses that are permitted as
of right within the zoning district. See id., 371 (plaintiff
submitted residential subdivision application in residential
zone); see also Friedman v. Planning & Zoning
Commission, supra, 263 (plaintiff sought site plan
approval for office building in commercial zone in
which such use was permitted); TLC Development, Inc.
v. Planning & Zoning Commission, supra, 528 (plaintiff
sought site plan approval for shopping center in zone
in which such use was permitted); Reed v. Planning &
Zoning Commission, supra, 432 (plaintiff filed residential
subdivision application in residential zone).

In contrast, when a use is not allowed as of right,
but only by special exception, the zoning commission
‘‘is required to judge whether any concerns, such as
parking or traffic congestion, would adversely impact
the surrounding neighborhood.'' Barberino Realty &
Development Corp. v. Planning & Zoning Commission,
222 Conn. 607, 613, 610 A.2d 1205 (1992). The
reason for this requirement is that, although such uses
‘‘are not as intrusive as commercial uses . . . they do
generate parking and traffic problems that, if not properly
planned for, might undermine the residential character
of the neighborhood.'' (Internal quotation marks
omitted.) Id., 612–13; see also Municipal Funding, LLC
v. Zoning Board of Appeals, supra, 270 Conn. 454 (‘‘the
goal of an application for a special exception is to seek
permission to vary the use of a particular piece of property
from that for which it is zoned, without offending
the uses permitted as of right in the particular zoning
district'' [internal quotation marks omitted]). Thus,
there is no presumption that a specially permitted use,
or the traffic that it will generate, necessarily is compatible
with any particular neighborhood within the zoning
district. Barberino Realty & Development Corp. v.
Planning & Zoning Commission, supra, 616 (off-site
traffic congestion can provide basis for denying special
permit because, ‘‘[u]nlike a site plan application for a
permitted use where the commission has already made
a determination that such a use is permitted in a particular
area, [specially permitted uses are] theoretically
allowed in any zone provided that the proposed [use]
meets the standards and regulations set forth in the
regulations'' [emphasis added]). To the extent that language
in Bethlehem Christian Fellowship, Inc. v. Planning
& Zoning Commission, supra, 73 Conn. App. 470,
indicates otherwise,31 we expressly disavow it.

Courts in other jurisdictions have concluded that, ‘‘in
order to deny a special permit because of traffic, the
project must cause traffic congestion and have a greater
impact on the area than other permitted uses for the
property not requiring a special permit.''32 R. Fuller, 9B
Connecticut Practice Series: Land Use Law and Practice
(3d Ed. 2007) § 49:14, pp. 138–39. The strict application
of this principle, however, would effectively exclude
many specially permitted uses from residential zones
in which they are expressly allowed. Churches and
schools, by their nature, generate different traffic patterns
and more intense traffic than residences. Accordingly,
we conclude that, if a special permitted use would
have a significantly greater impact on traffic congestion
in the area than a use permitted as of right, the
additional congestion may provide a basis for denying
the permit. Cf. Bethlehem Christian Fellowship, Inc.
v. Planning & Zoning Commission, supra, 73 Conn.
App. 470 (‘‘the consideration that applies to zoning
applications is not the overall volume of traffic . . .
but whether the increase in traffic will cause congestion'').
Moreover, the significance of the impact should
not be measured merely by the number of additional
vehicles but by the effect that the increase in vehicles
will have on the existing use of the roads. An increase
of 100 vehicles per hour may have a negligible impact
at one time or location and a ruinous impact at another
time or location. In making this determination, the commission
may rely on statements of neighborhood residents
about the nature of the existing roads in the
area and the existing volume of traffic, and its own
knowledge of these conditions. See, e.g., Primerica v.
Planning & Zoning Commission, 211 Conn. 85, 97–98,
558 A.2d 646 (1989).

Applying these principles to the commission's decision
in the present case, we conclude that there are
several flaws in the commission's stated reasons for its
conclusion that the proposed use of the property would
cause unacceptable traffic congestion and hazards.
First, the commission concluded that Greenberg had
not conducted a traffic survey at the property but had
relied on a survey conducted at an elementary school
several miles away. In Greenberg's traffic evaluation,
however, he stated that, in estimating current traffic
volume on Boggs Hill Road, he had relied on a traffic
volume count performed by the state department of
transportation ‘‘in the area of the subject site . . . .''
In addition, Greenberg stated that he provided the information
about traffic flow at the elementary school on
Boggs Hill Road ‘‘[f]or purposes of comparison to an
existing traffic generator . . . .'' Greenberg did not
state that he relied on the estimates of traffic flow at
the elementary school in estimating traffic flow at the
society's property, and the commission has referred us
to no other evidence that he did so. Accordingly, the
record does not support the commission's determination
that Greenberg did not rely on a traffic survey at
the site.

Second, the commission estimated, apparently on the
basis of its own knowledge, that peak traffic flow at
the society's property was approximately seventy-five
cars per hour, ‘‘so the potential increase in 150 cars
[per] hour peak travel at the site will be 100 to 200
[percent] . . . .'' Greenberg stated in his traffic evaluation,
however, that traffic volume at the property on
festival days would be 150 vehicles arriving at the property
and 150 vehicles leaving the property per day, not
per hour. Greenberg estimated that the peak traffic
volume generated by the property would be seventyfive
vehicles per hour. Moreover, Greenberg indicated
that the peak traffic volume at the property would occur
on festival days between 10 and 11 a.m. and again
between 3 and 4 p.m. Therefore, peak traffic at the
property would not coincide with the existing peak
traffic volume on Boggs Hill Road, which, according to
Greenberg, occurred between 8 and 9 a.m. on weekdays.
Consequently, the commission's determination that
peak traffic volume on Boggs Hill Road would be doubled
or tripled is not supported by the record.

We recognize that an additional seventy-five vehicles
per hour during peak hours on festival days would constitute
a significant increase in traffic volume at those
times, and that the total resulting volume at those times
might exceed existing peak volume.33 We also recognize
the commission's legitimate concerns about the dangerous
conditions on the portion of Boggs Hill Road adjacent
to the property. Nevertheless, in the absence of
any determination by the commission that an increase
of seventy-five vehicles per hour at peak hours on festival
days would increase traffic congestion or hazards
on Boggs Hill Road significantly more than a permitted
use of the property would, we agree with the trial court
that the evidence was inadequate to support the commission's
conclusion that the society's proposed use of
the property did not satisfy § 8.04.740 of the regulations.

C

General Character of the Neighborhood

We next address the commission's conclusion that
the proposed use was not in harmony with the general
character of the neighborhood in violation of § 8.04.720
of the regulations.34 The following additional facts and
procedural history are relevant to our review of this
ground for denial of the society's application. Numerous
members of the public spoke at the October 17 and
December 9, 2002 public hearings on the society's application
and submitted letters to the commission. Many
neighboring residents complained that, in the years
since the society had purchased the property, it had held
a series of daylong and weekend long events involving
crowds of up to 500 people and 150 cars. Outdoor loudspeakers
had been used at the events to play amplified
‘‘pop'' music that could be heard one-half mile away.
One neighboring resident had indicated that these disruptive
events had occurred every weekend, and, as a
result, he and his family had been forced to move.
After receiving complaints about the events, the town's
zoning officer had sent letters to the society on May
13, 1999, and October 6, 2000, informing the society that
it could not conduct religious services on the property
without obtaining approval for a special exception. The
events continued, however, and, on April 17, 2001, the
zoning enforcement officer issued a formal cease and
desist letter ordering the society to stop conducting
religious services until it obtained approval for a special
exception.

Richard T. Coburn, a resident at 141 Boggs Hill Road,
submitted to the commission a petition in opposition of
the special permit application signed by 1253 residents
from the surrounding area. The petition expressed concern
over the lack of information about the number
of people who would be using the proposed temple,
increased traffic, excessive noise and potential well and
septic problems. Robert N. Cox, a resident of 153 Boggs
Hill Road, submitted a letter to the commission stating
that a Cambodian Buddhist temple in the town of
Chelmsford, Massachusetts, had scheduled events for
fifteen Buddhist festivals over the course of one year,
several of which were scheduled to take place over
multiple days. Ten of these festivals were of a type that
might be held on the society's property. These festivals
were scheduled to run from 7 a.m. to 9:30 p.m. on the
first day and to begin at 4 a.m. on the second day. Cox
stated that, in light of this information, he was skeptical
that the society intended to hold only five one day
festival celebrations at the proposed temple.

After the October 17, 2002 hearing, the commission
asked the society to respond to the concerns raised by
the neighboring residents. Robert C. Schechinger, Jr.,
the society's architect, submitted a letter to the commission
in which he stated that, over the course of one
year, there would be five major festivals at the temple,
one of which would last three days, and seven minor
holiday celebrations. Schechinger stated that the society
believed that fewer than 450 people would attend
the major festivals. He did not indicate how many people
would attend the ‘‘minor'' celebrations. He stated
that there would be no music during the celebrations
except for chanting during a ceremonial march around
the balcony on the second floor of the temple, which
would last for approximately one-half hour. The only
other planned activities at the temple would be weekend
prayer activities and religion and language classes
for groups of fewer than seventy-five people. Schechinger
also indicated that, if vehicles exceeded the temple's
parking capacity for any particular festival, cars
would be turned away, and the society would rent a
hall for that festival the following year.

In its letter to the society announcing the denial of
the society's application, the commission stated that
the society originally had indicated that ten to fifteen
people would visit the temple on weekdays, thirty to
fifty people would visit on weekends, and that the temple
would hold four annual festivals for up to 450 people
on weekends during the daylight hours. The commission
stated that, although ‘‘[t]his . . . seemed acceptable,''
‘‘upon closer examination . . . this is a very
sanitized version as to what is to be expected.'' Specifically,
the commission expressed concerns that, since
the neighboring residents had raised questions at the
public hearings about the number of festivals that would
be held at the proposed temple, the society had revised
its position and stated that there would be not five, but
twelve, annual festivals, some occurring over multiple
days. The commission also noted the complaints about
the previous events at the property and the zoning
enforcement letters that had been issued to the society
in connection with those events. Finally, the commission
observed that the society had indicated that it
anticipated an increase in its membership by 700 to
800 people.

On the basis of this evidence, the commission stated
that it had ‘‘doubts that the [society was] forthcoming
with [its] intentions for [the] facility. During the public
hearings, the [society] was reluctant to provide answers
to [the commission's] questions and provided vague
information about the festivals and functions that [had
been] planned.'' The commission concluded that ‘‘[t]he
level of continuous activity that will take place at the
proposed site is inconsistent with the harmony of the
general character of the neighborhood.''

We conclude that there was evidence in the record
to support the commission's conclusion that attendance
at previous events on the society's property had exceeded
450 people and 14835 cars, and that the events
had been highly disruptive to the neighborhood. The
record also supported the conclusion that the society
would hold twelve festivals over the course of one year,
essentially on a monthly basis, and that the number of
persons attending at least some of these festivals could
exceed 450.36 Although the society maintained that the
celebrations would be held indoors, the commission
reasonably could have concluded that, especially during
the warm weather months, the 450 attendees would not
remain inside the temple's 6000 square foot meeting
hall over the course of an entire day or multiple days
but, as they had in the past, would take the opportunity
to enjoy the entire site, which had been chosen for its
pleasant pastoral qualities. In addition, although we
have concluded that the commission's determination
that temple traffic would create undue traffic congestion
and a traffic safety hazard was not supported by
substantial evidence, the commission reasonably could
have concluded that a parking lot for 148 cars would
be a significant source of noise and disruption in the
neighborhood. We conclude that this evidence supported
the conclusion that the activities at the proposed
temple would cause a significantly greater disruption
to the neighborhood than any permitted use of the property
would, and, therefore, the proposed use clearly
was not in harmony with the general character of the
neighborhood. We conclude, therefore, that the commission's
decision that the proposed use violated
§ 8.04.710 of the regulations was supported by substantial
evidence.

D

Intent and Purpose of the Regulations

Wenext address the commission's determination that
the proposed use of the property would be inconsistent
with the intent and purpose of the town's zoning provisions
in violation of § 8.04.720 of the regulations because
the evidence presented at the hearings established
that the society intended to use the property as
a ‘‘tele-medicine treatment site'' for psychiatric evaluation
and treatment, which was not a permissible use in
a residential zone.37 The evidence on which the commission
relied in support of this finding was an article that
appeared in The Hartford Courant on June 27, 2002, in
which it was reported that Khmer Health Advocates, a
social services agency serving the Cambodian community
in Connecticut, had obtained a $380,000 federal
matching grant to create a network of satellite health
services offices, one of which was to be located at the
‘‘Cambodian Buddhist [temple] in Newtown . . . .'' In
a letter to the commission dated November 26, 2002,
Me denied the report, stating that the society had ‘‘determined
. . . that the . . . proposed temple would not
be suitable as a . . . satellite site'' and that such a use
‘‘would disrupt'' the society's development program for
the temple. Me further stated that The Hartford Courant
never had contacted the society to verify the accuracy
of the information contained in its article.

We conclude that, if the proposed use of the property
as a temple otherwise complied with all applicable zoning
regulations, the mere possibility that the temple
would be used for an impermissible purpose would not
be a legitimate ground for denying the application. See
Irwin v. Planning & Zoning Commission, 244 Conn.
619, 628, 711 A.2d 675 (1998) (‘‘[a] zoning commission
does not have discretion to deny a special permit when
the proposal meets the [applicable] standards''). In the
absence of any evidence that the proposed permissible
use was pretextual or that the society deliberately misled
the commission, we cannot conclude that the newspaper
article constituted substantial evidence that the
society intended to use the property for an impermissible
purpose if its application for a special exception
were approved.

E

Property Values

Wenext address the commission's determination that
the proposed use of the property would substantially
impair property values in the neighborhood in violation
of § 8.04.730 of the regulations. The society presented
a report by Calciano and Stern Appraisal Associates,
Inc., a real estate appraisal firm, in which that firm
opined that ‘‘[the proposed temple] will have no impact
on the ‘[quiet] enjoyment,' utility, or market value of
the surrounding properties.'' In reaching this conclusion,
the firm had used a ‘‘matched pair analysis'' under
which it compared sales of residential properties in
other Newtown neighborhoods near existing religious
facilities to sales of similar properties where there was
no religious facility. It also used a ‘‘comparative market
analysis'' pursuant to which it examined the impact
of similarly intense nonresidential uses on residential
neighborhoods.

The commission also heard evidence that a family in
the neighborhood of the proposed temple had been
forced to move as a result of past activities there. When
that residence was sold, realtors had inquired whether
it was near the society's property, leading the family
to believe that the location had made it more difficult
to sell the property.38 In addition, the commission heard
evidence that a potential purchaser had canceled plans
to buy a property when he learned that the property
was near the proposed temple.

The commission concluded that the society's
appraisal report was of little value because the comparable
sales on which the report relied were in the vicinity
of churches that had ‘‘far fewer members than the
participants expected at the temple'' and lower levels
of continuous activity. It further concluded that ‘‘[t]he
specific examples provided by the neighbors [were]
more persuasive.'' Accordingly, the commission concluded
that the level of activity at the proposed temple
would substantially impair neighboring property values.
As we have indicated, ‘‘[t]he credibility of the witnesses
and the determination of issues of fact are matters
solely within the province of the [commission].''
(Internal quotation marks omitted.) Municipal Funding,
LLC v. Zoning Board of Appeals, supra, 270 Conn.
453. Accordingly, the commission was not required to
credit the appraisal firm's conclusion that the proposed
temple would have no effect on property values. Similarly,
the commission was entitled to credit the anecdotal
reports that past activities on the society's
property had made neighboring properties less desirable.
We already have concluded that the commission's
determination that those activities would cause a significantly
greater disruption to the neighborhood than any
permitted use was supported by substantial evidence.
Moreover, it is reasonable to conclude that the effect
of the activities on the sale of neighboring properties
would continue if the activities were allowed to continue.
We therefore conclude that the commission's
determination that the disruptive activities would significantly
impair property values was supported by substantial
evidence.

* * *

http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR285/285CR143.pdf

In summary, we conclude that the trial court correctly
determined that the record did not contain substantial
evidence to support the commission’s conclusion that
the society’s application for a special exception should
be denied because the design of the temple was not in
harmony with the design of other buildings in the vicinity
and because the temple would create unacceptable
traffic congestion and hazards. We also conclude that
the record is insufficient to support the determination
of the commission that the society intended to use the
property as a satellite health services office, which the
commission relied on in denying the society’s application.
We further conclude, however, that the record
contained substantial evidence to support the commission’s
denial of the society’s application on the grounds
that the level of activity at the proposed temple would
not be in harmony with the general character of the
neighborhood, that the temple would substantially
impair neighboring property values, and that the proposed
septic wastewater and water supply systems
would create a health or safety hazard. We therefore
conclude that the trial court properly denied the society’s
appeal.
The judgment is affirmed.

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