Grace Community Church v. Planning and Zoning Com'n of Town of Bethel

• Citation: 615 A.2d 1092,42 Conn.Supp. 256
• Decision Date: 17 March 1992
• Docket Number: No. 303616,303616
• Court: Connecticut Superior Court
• Parties: GRACE COMMUNITY CHURCH v. PLANNING AND ZONING COMMISSION OF the TOWN OF BETHEL, et al.

Page 1092

615 A.2d 1092

42 Conn.Supp. 256

GRACE COMMUNITY CHURCH v. PLANNING AND ZONING COMMISSION OF the TOWN OF BETHEL, et al.

No. 303616.

Superior Court of Connecticut,

Judicial District of Danbury.

March 17, 1992.

Driscoll, Lane, Mannion & Driscoll, Bethel, for plaintiff.

Gallagher & Gallagher, New Haven, for defendants.

FULLER, Judge.

This is an appeal from the denial by the defendant planning and zoning commission of the town of Bethel (commission) of a special permit to construct a church building in a residential zone. The appeal addresses, among other issues, whether municipal zoning laws can exclude churches as a permitted use anywhere in the municipality and whether denial of a special permit for a church violates the state and federal constitutions. The plaintiff, Grace Community Church, has also raised these constitutional questions in a direct attack on the zoning regulations of the town of Bethel in a separate action for a declaratory judgment that was consolidated for trial with this appeal. Grace Community Church v. Bethel, Superior Court, judicial district of Danbury, Docket No. 306994S, 1992 WL 56037 (March 17, 1992).

The plaintiff is an ecclesiastical church corporation and the owner of a 13.6 acre parcel of land on Walnut Hill Road in Bethel. The property is in a residential area and in the R-40 zone.

The plaintiff is a nondenominational church with approximately 500 members but no church building. The congregation has been using Brookfield High School on Sundays for religious services and related church activities. The plaintiff previously obtained approval from the commission on July 26, 1988, for a special permit and a related site plan for a church building on the 13.6 acre parcel of land. That approval was overturned on procedural grounds when abutting property owners brought a successful appeal to the Superior Court.

The plaintiff then submitted another application to the commission for a special permit and site plan approval substantially similar to the prior application with a slightly smaller building. While the site has frontage on both Walnut Hill Road and Weed Road, the two proposed driveways for the site were both off Walnut Hill Road. The proposed church building contained about 19,000 square feet covering less than one-half acre of the site. The commission approved the site plan on June 26, 1990. After the plaintiff filed the second special permit application on July 10, 1990, the commission scheduled a public hearing on the application for August 14, 1990, and referred it to several town officials and agencies for their review. Their reports back to the commission were favorable and any modifications or conditions that were suggested were either of no concern to the commission, agreed to by the plaintiff or were not relevant to the grounds of the commission's decision. There was an extensive public hearing on August 14, 1990, which was continued to September 4, 1990, and September 11, 1990. There was both support for and opposition to the application. Both sides had traffic experts who had prepared reports, discussed them and answered questions. On October 9, 1990, the commission extensively discussed the application and voted to deny it on the basis of § 118-21H(3) of the zoning regulations of the town of Bethel, a general provision concerning traffic conditions. That was the only concern of the commission as reflected in the minutes of its decision-making session, and the only reasons assigned for denial of the application. The plaintiff appealed to this court within fifteen days after publication of the agency's decision as required by General Statutes § 8-8.

As the owner of the property that was the subject of the special permit application, the plaintiff is aggrieved by the denial of its application. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968).

This appeal raises both constitutional and nonconstitutional claims. Issues that were raised in the appeal but not briefed by the plaintiff, such as a claim that denial of the special permit is an unconstitutional taking of the property, are considered abandoned. Shaw v. Planning Commission, 5 Conn.App. 520, 525, 500 A.2d 1338 (1985). Before constitutional claims can be considered, it must be determined whether the appeal can be sustained on a nonconstitutional issue. State v. Zach, 198 Conn. 168, 177, 502 A.2d 896 (1985); Maloney v. Pac, 183 Conn. 313, 324, 439 A.2d 349 (1981).

Most of the land in the town of Bethel is in one of five single family residence zones. Permitted uses in the single family residence zones include, among other uses: (1) one single family dwelling per lot; (2) certain types of home or professional offices and customary home occupations; (3) community recreation facilities, not including an amusement park or privately owned facility; (4) farming, dairy, truck or nursery gardening; (5) a public library; (6) a public recreational facility operated by a governmental unit; and (7) a family day care home. Bethel Zoning Regs. § 118-24(A) (1980). About thirty additional uses are allowed by a special permit in residential zones. Section 118-24(B). They include the use applied for by the plaintiff, a "[c]hurch, parish hall and parish housing, including a convent or other similar residence for clergy." Churches are allowed only with a special permit in all residential zones and some commercial zones, which comprise most of the land in the town. They are not a permitted use in any zone. Other uses allowed in residential zones by special permit include clubs, community center buildings, day care or nursery schools, fire stations, kennels, libraries or museums operated by nonprofit corporations, nursing or convalescent homes, police stations, post offices, private golf, tennis or swim clubs, schools, town highway facilities and town halls. Special permits require approval of a site plan which has numerous specific requirements. Bethel Zoning Regs. §§ 118-24(C) and 118-34(B) (1980). Other requirements for special permit approval are contained in § 118-21, which includes subsection H that provides: "Notwithstanding any other provision of this regulation, no special permit shall be approved unless the Planning and Zoning Commission shall have found that: (1) The proposed use will have no detrimental effect on present and future dwellings in the vicinity. (2) The proposed architecture, site plan and landscaping are in harmony with the character of the neighborhood. (3) No conditions will be created which will adversely affect traffic."

The commission members agreed at their meeting on October 9, 1990, that the proposed church building and site plan complied with subsections 118-21(H)(1) and (2), namely, that the proposed use did not have a detrimental effect on the neighborhood, and the proposed design of the building and site were consistent with the character of the neighborhood. Their concern, and the reason for denial, was based on traffic conditions and interpretation of subsection 118-21(H)(3) of the zoning regulations.

When a land use agency, such as a zoning commission, acts upon a special permit, it is required to give reasons for its action. General Statutes § 8-3c. When reasons are given, the Superior Court on appeal determines whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations that the agency is required to apply under the zoning regulations. Housatonic Terminal Corporation v. Planning & Zoning Board, 168 Conn. 304, 305, 306, 362 A.2d 1375 (1975); DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970); Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56, 549 A.2d 1076 (1988). Where the commission gives reasons for its action, the court does not go behind the official collective statement of the commission to find other reasons that might have influenced some or all of the members of the commission to reach a final collective decision. DeMaria v. Planning & Zoning Commission, supra, 159 Conn. at 541, 271 A.2d 105. Where a special permit is denied, it is sufficient if any one of the reasons given supports the agency's action. Housatonic Terminal Corporation v. Planning & Zoning Board, supra, 168 Conn. at 306, 362 A.2d 1375. Where none of the assigned reasons is valid, the court can sustain the appeal and order the special permit granted; DeMaria v. Planning & Zoning Commission, supra, 159 Conn. at 541, 542, 271 A.2d 105; at least where there is no other apparent problem of noncompliance with the zoning regulations.

When acting upon a special permit, a zoning commission acts in an administrative capacity. Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1970). The commission should determine whether (1) the proposed use of the property is expressly permitted under the zoning regulations; Weigel v. Planning & Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971); (2) whether the standards in the relevant zoning regulations are satisfied; Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969); and (3) whether conditions necessary to protect public health, safety, convenience and property values, as provided by General Statutes § 8-2, can be established. Housatonic Terminal Corporation v. Planning & Zoning Board, supra, 168 Conn. at 307, 362 A.2d 1375.

A church is allowed in a residential zone with a special permit, and the commission did not find noncompliance with any specific standards in the zoning regulations. The commission did not resolve conditions for traffic control devices that would prevent traffic problems, although it discussed them, because a majority of the commission thought the special permit should be denied for noncompliance with the general regulation concerning traffic conditions....