Opinion
No. CV 03-0348578S
May 25, 2005
MEMORANDUM OF DECISION
The plaintiffs, Cambodian Buddhist Society of Connecticut, Inc. ("society"), appeal from a decision by the defendants, Newtown planning and zoning commission ("commission"), which, the society alleges, violates its right to equal protection and burdens its freedom to exercise its religion. Before the court is the society's motion for leave to engage in discovery and offer evidence outside the record. (Motion #107.)
FACTS
The society is the owner of a parcel of land located at 145 Boggs Hill Road in Newtown, Connecticut ("property"). The property is located in an area designated as a farming and residential R-2 zone.
On or about August 8, 2002, the society, through its agent, filed an application with the commission for a special exception to construct a place of religious worship on the property.
On February 26, 2003, the commission denied the society's application. The society appeals from the denial on statutory and constitutional grounds.
The issue before the court is whether the society, pursuant to General Statutes § 8-8(k), may submit evidence outside of the record in its appeal from the commission's denial of the society's application for a special exception.
The commission no longer challenges the society's submission of evidence outside of the record in regard to the equal protection claims because the claims would not have been raised as part of the record and are necessary for the equitable disposition of the appeal.
The remaining issue, therefore, pertains only to whether the society may submit evidence outside of the record in regard to its claims under the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA"), and our state equivalent, General Statutes § 52-571b.
The society's argument is well stated in its motion for leave to engage in discovery and offer evidence outside the record. The society wishes to introduce and present evidence demonstrating the burdens the commission's action has imposed on the society's exercise of its religion. It concedes that there was some evidence in the record regarding the types of religious activities that the society sought to pursue, but believes that additional evidence of such burdens would be helpful to the court in rendering a decision.
The commission, in its objection to the motion, maintains that the evidence the society wishes now to introduce was known to it and could have been presented during the administrative proceedings before the commission, including relevant evidence on the factors in the federal and state statues protecting a religious assembly or institution. (Motion #108.)
SCOPE OF REVIEW
"An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear evidence . . . The question whether additional testimony should be taken by the court calls for an exercise of the court's legal discretion." (Citation omitted.) Tarasovic v. Zoning Commission, 147 Conn. 65, 69-70, 157 A.2d 103 (1959); see also Nielson v. Zoning Commission, 149 Conn. 410, 413, 180 A.2d 754 (1962); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 32.8, p. 136; T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 580, 592.
Our General Statutes allow a court to accept evidence outside of the record in an administrative appeal.
Section 8-8(k) states:
The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to Section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law. Any report of a referee, committee or mediator under subsection (f) of Section 8-8a shall constitute a part of the proceedings on which the determination of the court shall be made.
"The statute does not say that a trial court is required to hold an evidentiary hearing. Our Supreme Court, in Troiano v. Zoning Commission; 155 Conn. 265, 268, 231 A.2d 536 (1967), held that the trial court had the authority to decide, in the exercise of its discretion, whether additional evidence was necessary for the equitable disposition of the appeal." Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 579, 827 A.2d 764 (2003), cert. denied, 266 Conn. 911, 832 A.2d 68 (2003).
Section 8-8(k) sets forth the requirements which must be satisfied before additional evidence may be introduced in an administrative appeal, providing, in relevant part: "The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to Section 8-7a or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal."
"[T]he trial court has broad discretion in admitting evidence so that its rulings will not be disturbed absent a showing of a clear abuse of discretion. Borkowski v. Sacheti, 43 Conn.App. 294, 323, 684 A.2d 1095 (1996)." (Internal quotation marks omitted.) RR Pool Home, Inc. v. Zoning Board of Appeals, 43 Conn.App. 563, 573, 684 A.2d 1207 (1996). Courts traditionally interpret § 8-8(k) narrowly and rarely permit the introduction of additional evidence that was not presented to the agency in the original proceeding. See R. Fuller, supra, § 32.8, p. 136. Ultimately, however, "[w]hether to admit additional evidence is a matter within the sound discretion of the court." Swensson v. Planning Zoning Commission, 23 Conn.App. 75, 80, 579 A.2d 113 (1990); see also Samperi v. Planning Zoning Commission, 40 Conn.App. 840, 851, 674 A.2d 432 (1996).
DISCUSSION
"[A]dministrative agencies lack the authority to determine constitutional questions . . . [Our Supreme Court is] particularly reluctant to relegate to zoning boards the responsibility for constitutional fact-finding in view of the fact that the citizen volunteers who compose such boards generally are not land use professionals but, rather, laypersons with little or no technical expertise . . . Furthermore, although members of local zoning boards undoubtedly strive to attain a high degree of impartiality, especially when acting in their adjudicative capacity, they nevertheless are governed by rules that, in contrast to those governing court proceedings, encourage input by members of the general public with an interest in the outcome of the board's deliberations." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 64-65, 808 A.2d 1107 (2002); Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969).
In Connecticut, administrative appeals are considered civil actions. General Statutes § 8-8(p); Practice Book §§ 14-5, 14-6; Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 48 n. 5, 850 A.2d 1032 (2004); Connecticut Light Power Co. v. Costle, 179 Conn. 415, 423-24, 179 A.2d 1324 (1980). "The nature of the so-called `appeal' allowed by various statutes from the decisions of administrative boards . . . is not an appeal in the sense of a transfer of jurisdiction from one court to another, but simply provides a process, under the misleading name of appeal, for invoking the judicial power to determine a legal injury complained of, or the legality of an act done by the officers of another department." (Internal quotation marks omitted.) DeFlumeri v. Sunderland, 109 Conn. 583, 585, 145 A. 48 (1929); see also Sheehan v. Zoning Commission, 173 Conn. 408, 411, 378 A.2d 519 (1977), superseded in part by statute, General Statutes § 8-8(p).
"There are many instances where, because of the procedural posture of the case, [a plaintiff] may have no practical choice but to raise [a] challenge in the context of an appeal." Bombero v. Planning Zoning Commission, 218 Conn. 737, 745, 591 A.2d 390 (1991); see also Laurel Park Inc. v. Pac, 194 Conn. 677, 688, 485 A.2d 1272 (1984). In Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), for example, the court found the line between declaratory judgment actions and administrative appeals to be "ill-conceived" and permitted a party to pursue statutory and constitutional challenges against an agency through a substantive appeal. Id., 578-82.
As General Statutes § 22a-43a(a) requires a court presiding over an administrative appeal to hear additional evidence to decide constitutional issues de novo under the takings clause; see, e.g., Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 550-52, 552 A.2d 796 (1989), overruled in part on other grounds, Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 578-80 (finding the part of Cioffoletti that limits general challenges to the legality of legislation to declaratory judgment actions to be improper); see also Orange Street Armory Associates, Inc. v. New Haven, 17 Conn.App. 166, 169-70, 551 A.2d 759 (1988) (permitting additional evidence during a de novo review in an administrative appeal from the denial of an application for a property tax deferral); § 52-571b may also require a court to hear additional evidence inasmuch as the statute indicates that a person may assert the claim in any judicial proceeding . . ." General Statutes § 52-571b(c). Courts also cite to § 8-8 to permit the introduction of additional evidence, limited to the constitutional question of confiscation, in order to equitably dispose of appeals. See, e.g., Troiano v. Zoning Commission, 155 Conn. 265, 231 A.2d 536 (1967); Strom v. Planning Zoning Commission, 153 Conn. 339, 216 A.2d 623 (1966).
General Statutes § 22a-43a(a) provides: "If upon appeal pursuant to Section 22a-43, the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking. In both instances the court shall remand the order to the inland wetland agency for action not inconsistent with its decision."
General Statutes § 52-571b(c) provides: "A person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state."
The constitutional issues raised by the society rest on a factual foundation similar to the takings cases. Specifically, the society does not attack the constitutionality of an ordinance, regulation or statute from which it seeks relief, and the commission is not empowered to resolve the implicated constitutional issues. See Cioffoletti v. Planning Zoning Commission, supra, 550, 551-52; D'Addario v. Planning Zoning Commission, 25 Conn.App. 137, 141-42, 593 A.2d 511 (1991). Moreover, the commission's action in denying the application outright, instead of granting it subject to subsequent administrative approvals, which is part of the basis for the constitutional claims, could not have been known until after the commission's decision. See Cioffoletti v. Planning Zoning Commission, supra, 552.
The court, furthermore, recognizes that when a party in fact brings an independent civil action in addition to an appeal from an administrative decision, the matters are often consolidated for the purpose of judicial economy. In Grace Community Church v. Bethel, 30 Conn.App. 765, 768, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S.Ct. 383, 126 L.Ed.2d 332 (1993), the plaintiff appealed a commission's denial of a special permit to the Superior Court and then filed a separate action in the Superior Court challenging the constitutionality of the zoning regulations. The trial court consolidated the two actions and considered extensive evidence on the matter. Id.; see also Corsino v. Grover, 148 Conn. 299, 302, 170 A.2d 267 (1961).
Instead of forcing the society to initiate a separate action to pursue its statutory and constitutional claims, the court, exercising its discretion under the factual circumstances of the appeal before it, finds that it should hear additional evidence during the appeal in order to advance judicial economy and gain further testimony for the equitable disposition of the appeal.
The court further finds that extraordinary reasons exist which require the court to allow additional evidence outside of the record. The commission denied the request for the special permit on 6 grounds. It found that the following criteria of the zoning regulations of the Town of Newtown had not been met:
(1) Section 8.04.710. The proposed use shall be in harmony with the general character of the neighborhood.
(2) Section 8.04.720. The proposed use shall not be inconsistent with the intent and purpose of these regulations.
(3) Section 8.04.730. The proposed use shall not substantially impair property values in the neighborhood.
(4) Section 8.04.740. The proposed use shall not create additional congestion or a traffic hazard on existing streets.
(5) Section 8.04.750. The 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.
(6) Section 8.04.770. The architectural design of the proposed buildings shall be in harmony with the design of other buildings on the lot and within 1,000 feet of the perimeter of the lot for which the special exception is sought.
In the commission's letter to the applicant dated February 26, 2003 (Record Exhibit #4) in which it denied the application and stated the above 6 reasons for the denial, the commission stated that:
The PZ Commission is fully aware of its obligations in meeting the requirements for religious freedom provided by the first amendment to the constitution and Sec. 1(a)(1) of the Act (42 U.S.C.A. 2000 cc(a)(1) pertaining to land use which states that (paraphrased) "for rejection the commission must demonstrate that the land use regulations imposed are
(a) In furtherance of a compelling governmental interest and
(b) Is in the least restrictive means of furthering that compelling governmental interest."
Merely stating its obligation does not mean that the commission properly applied its obligations or understood the constitutional and statutory law. If it had, it would not have denied based upon items numbers 1, 2, 3 and 6 above which similar denials have been held in other cases to be vague and arbitrary and burdensome on the exercise of the freedom of religion. However, in an appeal the court's obligation is to sustain the decision of the commission if one and only one of the reasons for the denial is valid. The denials as articulated in numbers 4 and 5 above may be supported by the record and the court will allow the society to present evidence outside of the record regarding these two reasons for denial.
The court accordingly grants the society's motion for leave to offer evidence outside the record as articulated above.
FRANKEL, J.