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considering plaintiff's constitutional claims along with its appeal under Conn. Gen. Stat. § 8-8
Summary of this case from Firetree, Ltd. v. NorwalkOpinion
No. CV-03-0350572S
November 18, 2005
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiff is the Cambodian Buddhist Society of Connecticut, Inc. ("society"). 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 Newtown planning and zoning commission ("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 has appealed said denial pursuant to statute.
The society has claimed in its appeal that the decision of the commission: (1) was arbitrary, illegal and an abuse of its discretion; (2) violated General Statutes Conn. § 52-571b, the Religious Freedom Act ("RFA"); and (3) violated 42 U.S.C. § 2000cc et seq., the Religious Land Use and Institutionalized Persons Act ("RLUIPA").
Joined as defendants pursuant to a motion to intervene (motion #103 granted on June 2, 2003, by the court, Downey, J.) are abutting property owners and property owners within 100 feet of the property.
FACTS
In 1999 the Society purchased the property Newtown. Its president, Pong Me testified that it did so because the property has all of the qualities needed for a temple. Presently there is no temple available to the society to practice its religion. The society has been renting hall space in various locations to conduct its services.
AGGRIEVEMENT
The court, Downey J., previously ruled that the society is aggrieved for purposes of General Statutes § 8-8. Therefore, the issues of aggrievement are not addressed here.
SCOPE OF REVIEW
"The terms `special permit' and `special exception' have the same legal import and can be used interchangeably." A.P. W. Holding Corp. v. Planning Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974). "A special [exception] allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 639, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). See also Housatonic Terminal Corp. v. Planning Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1975).
"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998). "Acting in this administrative capacity, the [zoning commission's] function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, supra, 53 Conn.App. 639. "Moreover, [i]t is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations . . . The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied." (Internal quotation marks omitted.) Id., 640. See also Housatonic Terminal Corp. v. Planning Zoning Board, supra, 168 Conn. 307.
"The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised . . . The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site . . . or through their personal knowledge of the area involved." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, supra, 53 Conn.App. 643. "On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the commission . . . has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). "Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, supra, 53 Conn.App. 639.
"[I]t is not the function of the court to retry the case. Conclusions reached by the 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 agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-43, 600 A.2d 757 (1991). See also Middlebury v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 96 0130420 (April 14, 1997, Pellegrino, J.).
"[W]here a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970). "In situations in which the zoning commission . . . [states] the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations . . . 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.) Irwin v. Planning Zoning Commission, supra, 244 Conn. 629. "The burden of proof to demonstrate that the [commission] acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
EVIDENCE OUTSIDE OF THE RECORD
Pursuant to General Statutes § 8-8(k), the court, Frankel J., by order dated May 25, 2005, allowed the society to present evidence outside of the record. (Order number 140.) The parties had agreed that the society would be able to present evidence on the issue of equal protection. The order allowed the society to present evidence regarding the RLUIPA and RFA.
EQUAL PROTECTION
"The [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment to the United States [c]onstitution is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)[,] citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786." (Internal quotation marks omitted.) Zahra v. Southold, 48 F.3d 674, 683 (2d Cir. 1995). "[A] violation of equal protection by selective [treatment] arise[s] if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." LaTrieste Restaurant Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994), citing LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).
"[T]he requirement imposed upon [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently . . . Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1995) . . . Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995)." (Emphasis in original; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 672, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). See also Alexander v. Commissioner of Administrative Services, 86 Conn.App. 677, 684, 862 A.2d 851 (2004).
Viewed in the light most favorable to the plaintiffs, the following evidence was before the court and is relevant to the determination of whether the society had established a prima facie case of an equal protection violation by the defendants.
The society presented three instances of religious institutions being granted special permits in Newtown.
The first is the two applications of Congregation Adath Israel. Prior to 1900 Adath Israel had a synagogue in Newtown. It sought to build a new synagogue a short distance from the old. The first application failed by a vote of three to two due to the size of the building. Its second application was approved because it was determined that the lot was not as small as previously thought, rather than being under two acres it was actually two acres.
The society argued that since Adath Israel did not have to reduce the size of its building, it was treated differently from the society. That argument fails because the Society failed to recognize that it was determined that the lot was larger than first thought. However, Adath Israel's application was approved with the special condition that the height of the building conform to requirements. (See exhibits 2, 7, and 6.)
The next application the society introduced was the application of the Newtown United Methodist Church requesting an addition to the existing building adjacent to the church. This example also fails because the commission found that the improvements to the property were minor and did not change the permitted use. (See exhibits 11, 13, and 18.)
The last application presented by the society was the application of the Newtown Congregational Church. This property is located in the borough of Newtown and acted on by a different agency than the commission.
There are additional distinguishing factors among these examples presented by the society. With the exception of the Adath Israel's property, all are located on or close to state highways, all are connected to public sewers and all properties have traffic report levels of service A.
Based upon the above, the court finds that society has not met its burden of proof in regards to its equal protection claims.
RLUIPA
The Religious Land Use and Institutionalized Person Act (RLUIPA) was passed by Congress in 2000 in response to the Supreme Court decision in City of Boerne v. Flores, 521 U.S. 57, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), which invalidated the Religious Freedom and Restoration Act of 1993. See generally Cutter v. Wilkinson, 544 U.S. 125 S.Ct. 2113, 2117-18, (2005). The current statute provides the following "[g]eneral rule" for "[p]rotection of land use as religious exercise":
No 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 government interest; and
(B) is the least restrictive means of furthering that compelling interest.
RFA-CONNECTICUT GENERAL STATUTES § 52-571b
The claim has also been made by the society that the commission violated Connecticut's Religious Freedom Act (RFA), found in General Statutes § 52-571b, which reads as follows:
Action or defense authorized when state or political subdivision burdens a person's exercise of religion.
(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.
(c) 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.
(d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief.
(e) Nothing in this section shall be construed to affect, interpret or in any way address that portion of article seventh of the Constitution of the state that prohibits any law giving a preference to any religious society or denomination in the state. The granting of government funding, benefits or exemptions, to the extent permissible under the Constitution of the state, shall not constitute a violation of this section. As used in this subsection, the term "granting" does not include the denial of government funding, benefits or exemptions.
(f) For the purposes of this section, "state or any political subdivision of the state" includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state, and "demonstrates" means meets the burdens of going forward with the evidence and of persuasion.
General Statutes § 52-571b.
DISCUSSION
"RLUIPA, by its terms, applies to 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." House of Fire Christian Church v. Zoning Board of Adjustment of the City of Clifton, Superior Court of New Jersey, Appellate Division, No. A-2019-03T2 (Passaic County, August 22, 2005).
"[A] government agency implements a `land use regulation' only when it acts pursuant to a `zoning or landmarking law' that limits the manner in which a claimant may develop or use property in which the claimant has an interest." Prater v. City of Burnside, 289 F.3d 417, 434 (6th Cir.), cert. denied, 537 U.S. 1018, 123 S.Ct. 550, 154 L.Ed.2d 425 (2002). See also 42 U.S.C. § 2000cc-5(5) (defining "land use regulation").
"To establish a prima facie case under RLUIPA [the society] must allege facts sufficient to show that [the commission's] conduct in denying the [a]pplication: (1) imposes a substantial burden; (2) on the `religious exercise;' (3) of a person, institution or assembly." Westchester Day School v. Village of Mamaroneck, United States District Court, No. 02 Civ. 6291(WCC) (S.D.N.Y. July 27, 2005). "If a plaintiff produces prima facie evidence to support a claim alleging a violation of the [f]ree [e]xercise [c]lause [of the [f]irst [a]mendment to the United States [c]onstitution] or a violation of [RLUIPA], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice challenged by the claim substantially burdens the plaintiff's exercise of religion." House of Fire Christian Church v. Zoning Board of Adjustment of the City of Clifton, supra, citing 42 U.S.C. § 2000cc-2(b). Thus, to invoke the protection of § (a) of RLUIPA, the society bears the burden of first demonstrating that the denial of its application substantially burdens its religious exercise." Sts. Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 899 (7th Cir. 2005); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1125 (11th Cir. 2004), cert. denied, 125 S.Ct. 1295, 161 L.Ed.2d 106 (2005); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir. 2003), cert. denied, 541 U.S. 1096, 124 S.Ct. 2816, 159 L.Ed.2d 262 (2004) [hereinafter "CLUB"]. If the plaintiff makes such a showing, then the burden shifts to the local government to demonstrate that the challenged imposition or implementation of the land use regulation "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc(a)(1)(A)-(B).
While the RLUIPA requires a "substantial burden" on religious exercise, RFA merely requires a "burden" on religious exercise. General Statutes § 52-571b(a). Should the society demonstrate such a burden, the commission's duty to convince the court that its application of the zoning regulations furthers a compelling government interest using the least restrictive means remains the same. General Statutes § 52-571b(b).
"The Second Circuit has noted that despite the relatively liberal definition of `religious exercise' provided in the Act, the legislative history of RLUIPA suggests that the definition does have limits that must be respected." Westchester Day School v. Village of Mamaroneck, supra, United States District Court, No. 02 Civ. 6291(WCC), citing Westchester Day School v. Village of Mamaroneck, 386 F.3d 183, 190 n. 4 (2d Cir. 2004), quoting 146 Cong. Rec. S7774-01, S7776 (July 27, 2000) (cautioning that "`not every religious activity carried out by a religious entity or individual constitutes religious exercise'" and noting that activities or facilities that are owned, sponsored or operated by a religious institution do not automatically fall within RLUIPA's definition of "religious exercise").
The term "religious exercise" is, nevertheless, broadly defined by RLUIPA to include "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). Under RLUIPA, "[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose." 42 U.S.C. § 2000cc-5(7)(B). It is clear that the church's proposed plan to build a house of worship on its property and to use the proposed structure for holding church services for members of its congregation constitutes "religious exercise." As explained by the co-sponsors of RLUIPA as part of the need for this legislation: "The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core [f]irst [a]mendment right to assemble for religious purposes." 146 Cong. Rec. S77745 (July 27, 2000) (joint statement of Senators Hatch and Kennedy) [hereinafter "Joint Statement"].
The term "substantial burden" is not defined by RLUIPA; rather, its proponents intended that the term "be interpreted by reference to Supreme Court jurisprudence," and that it "not . . . be given any broader interpretation than the Supreme Court's articulation of the concept of substantial burden [on] religious exercise." Joint Statement, S7776.
"[T]he Supreme Court has articulated the substantial burden test differently over the years. See Lyng v. Northwest Indian Cemetery Protective Ass'n., 485 U.S. 439, 450-51 [ 108 S.Ct 1319, 99 L.Ed.2d 534] (1988). In Lyng, the Supreme Court stated that for a governmental regulation to substantially burden religious activity, it must have a tendency to coerce individuals into acting contrary to their religious beliefs. Id.; see also Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 717-18 [ 101 S.Ct 1425, 67 L.Ed.2d 624] (1981) (holding that a substantial burden exists where the government puts `substantial pressure on an adherent to modify his behavior and to violate his beliefs . . .'). Thus, for a burden on religion to be substantial, the government regulation must compel action or inaction with respect to a sincerely-held belief; mere inconvenience to the religious institution or adherent is insufficient. See Werner v. McCotter, 49 F.3d 1476, 1480 [(10th Cir.), cert. denied, 515 U.S. 1166, 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995)]; see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). Courts in [the Second] Circuit have concluded that the regulations must have a `chilling effect' on the exercise of religion to substantially burden religious exercise. See Murphy v. Zoning Commission of Town of New Milford, 148 F.Sup.2d 173, 188-89 (D.Conn. 2001) [vacated, 402 F.3d 342 (2005)]. However, that a `burden would not be insuperable would not make it insubstantial.' Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin [ supra,] 396 F.3d . . . 901 . . . (noting that just because the plaintiff could re-submit its application with a different `planned unit development' did not mean that defendant's denial of its original application was not a substantial burden)." Westchester Day School v. Village of Mamaroneck, supra, United States District Court, No. 02 Civ. 6291(WCC).
Interpreting RLUIPA, the Seventh, Ninth and Eleventh Circuits respectively provide "substantial burden" tests that remain the highest existing authority on the statute in the context of a land use decision. The Seventh Circuit originally adopted the following definition of substantial burden: "[I]n the context of RLUIPA's broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears a direct, primary, and fundamental responsibility for rendering religious exercise — including the use of real property for the purpose — thereof within the regulated jurisdiction generally — effectively impracticable." CLUB v. City of Chicago, supra, 342 F.3d 761.
The Ninth Circuit provided its version of the substantial burden test in a ruling "entirely consistent" with the Seventh Circuit's CLUB decision. San Jose Christian College v. City of Morgan Hill, 360 F.3d, 1024, 1035 (9th Cir. 2004). "A `burden' is `something that is oppressive.' Black's Law Dictionary 190 (7th Ed. 1999). `Substantial,' in turn, is defined as `considerable in quantity' or `significantly great.' Merriam-Webster's Collegiate Dictionary 1170 (10th Ed. 2002). Thus, for a land use regulation to impose a `substantial burden,' it must be `oppressive' to a `significantly great' extent. That is, a `substantial burden' on `religious exercise' must impose a significantly great restriction or onus upon such exercise." Id., 1034.
The Eleventh Circuit on the other hand declined to adopt the Seventh Circuit's definition in CLUB because "it would render § b(3)'s total exclusion prohibition meaningless." Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d 1127. The "[ CLUB] test reads quite a bit more into the word `substantial' than is warranted by the text, purpose or history of the statute. Indeed, such a reading would inappropriately fuse the `substantial burden' prong of RLUIPA with the narrower `exclusion limitation' provision." Guru Nanak Sikh Society v. County of Sutter, 326 F.Sup.2d 1140, 1153-54 (E.D.Cal. 2003).
Nevertheless, the Eleventh Circuit agrees that a "substantial burden" requires something more than an incidental effect on religious exercise: "[A] `substantial burden' must place more than an inconvenience on religious exercise; a `substantial burden' is akin to a significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct." Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d 1127.
After the Eleventh Circuit's Midrash Shepardi, Inc. decision the Seventh Circuit revisited its interpretation of the "substantial burden" test. See Sts. Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra, 396 F.3d 895. "A separate provision of the [RLUIPA] forbids government to `impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.'" Id., 900, citing 42 U.S.C. § 2000cc(b)(1) and (2). The "substantial burden" provision under 42 U.S.C. § 2000cc(a)(1) must thus mean something different from "greater burden than imposed on secular institutions." Sts. Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra, 900.
The church in Sts. Constantine acquired property in a residential zone. It originally applied for permission to rezone a parcel of the property from residential to institutional in order to build a new church. To allay the planning department's concern that, should the church decide to forgo its plans for the site, a school or another nonreligious facility might be built on the property, however, the church modified its application by coupling with the rezoning a proposal that the city promulgate a planned unit development ordinance limiting the parcel to church-related uses. The city council, nevertheless, voted the proposal down on legal grounds the court found to be mistaken, and proposed alternatives that the court deemed unrealistic. Inasmuch as the court found the church willing to bind itself by any means necessary not to sell the land for a nonreligious institutional use, a factor that would eliminate the city's only legitimate concern, the court concluded that the church was substantially burdened and provided the parties with a stay to give the city an opportunity to negotiate with the church to work out an effective solution before providing the church with its requested relief.
With the following analysis, Judge Posner articulated the court's conclusion that the church suffered a substantial burden: "The [c]hurch could have searched around for other parcels of land (though a lot more effort would have been involved in such a search than, as the [commission] would have it, calling up some real estate agents), or it could have continued filing applications with the [commission], but in either case there would have been delay, uncertainty, and expense. That the burden would not be insuperable would not make it insubstantial." Sts. Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra, 396 F.3d 901.
Applying Sts. Constantine, CLUB and Midrash, a United States District Court under the jurisdiction of the Sixth Circuit concluded similarly that the denial of a special use permit to construct a building in excess of a specified height imposed a substantial burden on religious exercise under RLUIPA when the plaintiff would incur delay, expense and uncertainty if it was required to reapply or search for another site. Living Water Church of God v. Charter Township of Meriden, United States District Court, File No. 5:04-CV-06 (W.D.Mich. August 23, 2005). The court found the denial of the special use permit directly responsible for rendering the plaintiff's ability to use its real property for its religious purposes effectively impracticable, thus imposing a substantial burden on religious exercise. Id.
"At a minimum, a substantial burden is one which actually inhibits religious practice by virtue of a land use decision." Guru Nanak Sikh Society v. County of Sutter, supra, 326 F.Sup.2d 1154. The religious activities need not be "fundamental" to the society's practice of religion. Grace United Methodist Church v. City of Cheyenne, United States Court of Appeals, Docket No. 03-8060 (10th Cir. October 25, 2005). "RLUIPA's `substantial burden' test does not require that [the society] actually establish discrimination . . . It is sufficient that the [commission's] actions have had an actually inhibiting effect on [the society's] ability to practice its religion . . ." Guru Nanak Sikh Society v. County of Sutter, supra, 1153.
The Second Circuit has yet to reach the merits of a land use case under RLUIPA, but, in the Westchester Day School case, the preliminary guidance it provides to lower courts applying the substantial burden test is incongruous with the Seventh Circuit's Sts. Constantine decision. Compare Westchester Day School v. Village of Mamaroneck, supra, 386 F.3d 189-90 with Sts. Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra, 396 F.3d 900. "As a legislative accommodation of religion, RLUIPA occupies a treacherous narrow zone between the [f]ree [e]xercise [c]lause, which seeks to assure that government does not interfere with the exercise of religion, and the [e]stablishment [c]lause, which prohibits the government from becoming entwined with religion in a manner that would express preference for one religion over another, or religion over irreligion. As the Supreme Court has noted, "`[a] proper respect for both the [f]ree [e]xercise and the [e]stablishment [c]lauses compels the [s]tate to pursue a course of neutrality toward religion," favoring neither one religion over others nor religious adherents collectively over nonadherents.'" Westchester Day School v. Village of Mamaroneck, supra, 386 F.3d 189, citing Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 696, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), quoting Commission for Public Education Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). See also Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 1311, 158 L.Ed.2d 1 (2004); Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 144-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) ("[T]he government may (and sometimes must) accommodate religious practices and . . . may do so without violating the [e]stablishment [c]lause."). "While government unquestionably may take positive steps to protect the free exercise of religion, it must avoid going so far in this goal as to adopt a preference for one religion or for religion generally." Westchester Day School v. Village of Mamaroneck, supra, 386 F.3d 190.
Though the Seventh Circuit implies that the statute affords religious institutions greater protection than secular institutions; Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra, 900 ("A separate provision of the Act forbids government to `impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.'"); the Second Circuit instructs courts in our jurisdiction to pursue a course of neutrality that does not favor religion over irreligion. Westchester Day School v. Village of Mamaroneck, supra, 189-90. If two identically situated institutions, one being religious and the other secular, submit functionally identical applications to a zoning body, the Westchester Day School court expressed doubt that RLUIPA is broad enough to permit the zoning authority to reject the application of the secular institution but permit the application of the religious institution. Id. As a general rule, therefore, at least in our jurisdiction, a religious institution is less likely to have suffered a substantial burden when evidence shows that a zoning authority denied an application on grounds it would have applied equally to a secular institution submitting an identical proposal. Id.
The Second Circuit, by implication, aligns itself closer with the Midrash line of cases, which view a substantial burden as a direct coercion that forces adherents to forgo religious precepts. Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d 1127. State courts interpreting the "substantial burden" requirement under RLUIPA have also set high thresholds for aggrieved parties attempting to establish a prima facie case. See, e.g., Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of West Linn, 338 Or. 453, 111 P.3d 1123 (2005). "[A] government regulation imposes a substantial burden on religious exercise only if it `pressures' or `forces' a choice between following religious precepts and forfeiting certain benefits, on the one hand, and abandoning one or more of those precepts in order to obtain the benefits, on the other." Id., 1130, citing Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
Although the Connecticut case law interpreting the RLUIPA is limited, our Appellate Court, in per curiam decision under the RFA, First Church of Christ v. Historic District Commission, 55 Conn.App. 59, 737 A.2d 989 (per curiam), cert. denied, 251 Conn. 923, 742 A.2d 358 (1999), "adopt[ed] the Superior Court's well reasoned decision in First Church of Christ v. Historic District Commission, 46 Conn.Sup. 90 [ 738 A.2d 224] (1999), which stated that "[c]hurches and religious organizations can be regulated under a state's police power if that regulation is religiously neutral and for secular purposes. Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In the . . . case, the plaintiff . . . [claimed] that its free exercise rights were somehow burdened by the commission's denial of its application to reclad its church with aluminum siding. The commission's decision, however, [did] not [interfere] with the right of the plaintiff or its members to express their religious views, or associate or assemble for that purpose. Further, the restrictions within the historical district [applied] to all other property owners within the district. `The first amendment cannot be extended to such an extent that a claim of exemption from the laws based on religious freedom can be extended to avoid otherwise reasonable and neutral legal obligations imposed by government.' Grace Community Church v. Bethel, Superior Court, judicial district of Danbury, Docket No. CV 306994 [(July 16, 1992, Fuller, J.) ( 7 Conn. L. Rptr. 65), aff'd, 30 Conn.App. 765, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375 (1993)], citing Employment Division v. Smith, 494 U.S. 872, 888, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The plaintiff [had] not shown that the commission's actions . . . [constituted] an unreasonable restriction on the free exercise of religion." First Church of Christ v. Historic District Commission, supra, 46 Conn.Sup. 101.
At least one other Superior Court decision in Connecticut, discussing both the RLUIPA and RFA, also touched on the relationship between the free exercise of religion and the safety and traffic issues a zoning commission must assess when applying zoning regulations. Farmington Avenue Baptist Church v. Farmington, Superior Court, judicial district of Hartford, Docket No. CV 01 0811563 (July 9, 2003, Beach, J.) ( 35 Conn. L. Rptr. 209). "Secular concerns such as safety do not impinge on the exercise of religion, assuming, of course, that the recitation of such concerns is not a mere pretext. Our case law already establishes a heightened scrutiny as to the more general and less quantitative considerations. The statutes seeking to preserve the value of freedom of religion can peacefully coexist with zoning regulations regarding safety, traffic, and the like, so long as those concerns are not used to mask discriminatory intent." Id., 211 n. 4.
In addition to the case law, the legislative histories of the RLUIPA and the RFA underscore the legislatures' intent not to exempt religious institutions from the procedural hurdles facing all development projects. The RLUIPA "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 provisions in land use regulations, where available without discrimination or unfair delay." Joint Statement, S7774-01, S7776. In Connecticut, correspondingly, debate in the General Assembly over Public Act 93-252 indicates that "a group simply by evoking [the RFA] or evoking the [f]irst [a]mendment, would not be able to avoid . . . a reasonable municipal requirement that a permit be obtained." 36 H.R. Proc., Pt. 14, 1993 Sess., p. 4937, remarks of Representative Radcliffe. "Assuming that the permit requirements would effectuate the public health, safety and welfare, are equally and evenly applied to all participants, then [the requirement that the group obtain a permit] would be the same." Id., p. 4937, remarks of Representative Tulisano. "[C]hurches, under this law . . . are required to fulfill the building codes that are required of them. Those similar type of things are required of everybody and they . . . do fulfill the [s]tate's interest." Id., p. 4938, remarks of Representative Tulisano.
The commission in the present appeal required the society to submit a complete application, as testimony showed the commission requires of all applicants. San Jose Christian College v. Morgan Hill, supra, 360 F.3d 1035. Where a government body impairs a religious institution's ability to build a place of worship, the relevant burden is the burden of being prevented from implementing the particular proposal at issue, plus, logically, the burden of submitting a new application. See Corporation of the Presiding Bishop v. City of West Linn, supra, 111 P.3d 1126. As Westchester Day School states, "rejection of a submitted plan, while leaving open the possibility of approval of a resubmission with modifications designed to address the cited problems, is less likely to constitute a `substantial burden' than definitive rejection of the same plan, ruling out the possibility of approval of a modified proposal." Westchester Day School v. Village of Mamaroneck, supra, 386 F.3d 188. See also Cathedral Church of Intercessor v. Village of Malverne, United States District Court, CV 02-2989 (TCP)(MO) (E.D.N.Y. January 25, 2005). There is no evidence in the record demonstrating that the society is precluded from using other sites within the town, nor is there any evidence that the commission would not impose the same traffic and safety requirements on any other entity seeking to build on the property. San Jose Christian College v. Morgan Hill, supra, 1035. Should the society obtain the relevant approvals from other agencies, submit a new proposal that addresses the commission's concerns and/or provide additional evidence on the traffic and safety issues identified by the commission, it is not apparent that its application will be denied. Id.
When a church in Florida purchased property subject to zoning ordinances for the sole purpose of renovating, building and developing it as a permanent home for realizing the mission of the church, a local zoning board denied the church's request for a zoning variance to operate a church on the property on the ground that the variance would not be in harmony with the community and the traffic would be detrimental to the public welfare. Primera Iglesia Bautista Hispana v. Broward County, United States District Court, Docket No. 01-6530-CIV-Martinez/Klein (S.D.Fla. September 30, 2004). Applying the RLUIPA, the federal district court found that the church created its own hardship and burden by purchasing the property without a condition of zoning and therefore failed to establish a prima facie case under § (a).
Id., 20.
Instead of a variance, however, the present appeal involves an application for a special permit. The essential difference between a variance and a special permit is that the variance permits the owner to develop and use the property in a manner forbidden by the zoning regulations, while the special permit authorizes those uses that are explicitly permitted in the regulations. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 177, citing Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975); Parish of St Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 353, 232 A.2d 916 (1967); see also Mitchell Land Co. v. Planning Zoning Board of Appeals, 140 Conn. 527, 532-33, 102 A.2d 316 (1953); 83 Am.Jur.2d 701, 803-04, Zoning and Planning §§ 831, 960 (1992). "The prerequisite for obtaining a variance is a demonstration that enforcement of the regulations for a particular parcel would impose such a hardship that enforcement would be all but an unconstitutional taking of the property. Hardship is irrelevant when a commission considers granting a special permit, however. Instead the condition precedent is that the regulations specify that the particular use is permissible upon the issuance of a special permit, which is available under listed circumstances." T. Tondro, supra, p. 177.
"Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it [nevertheless possesses the] discretion to determine whether the proposal meets the standards set forth in the regulations. If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application. The converse is, however, equally true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it." Irwin v. Planning Zoning Commission, supra, 244 Conn. 628.
The society argues that it "cannot simply build a Buddhist temple anywhere, and that a temple site has to be conducive to creating a peaceful, meditative environment." "The [society], however, do[es] not claim that locating [its] house of worship in a residential area is a basic tenet of [its] faith." Congregation Kol Ami v. Abington Township, United States District Court, Civil Action No. 01-1919 (E.D.Pa. August 12, 2004). The first amendment does not guarantee a perfect fit between available land and proposed religious purposes. Id., citing Love Church v. City of Evanston, 896 F.2d 1082, 1086 (7th Cir.), cert. denied, 498 U.S. 898, 111 S.Ct 252, 112 L.Ed.2d 210 (1990). The lack of designated meditation space does not in itself impose a substantial burden. Episcopal Student Foundation v. City of Ann Arbor, 341 F.Sup.2d 691, 706 (E.D.Mich. 2004).
The society also argues that it lacks meeting and gathering space. But in the intervening time period between the current denial and an application that eventually meets the commission's traffic, health and safety concerns, whether at the current site or another location, "events may [continue to] be hosted at members' homes or at other facilities permitted in residential neighborhoods. While this will undoubtedly be more difficult, inconvenient, and expensive than simply [hosting activities at its own facility], it is not the type of burden recognized by the [f]irst [a]mendment." Congregation Kol Ami v. Abington Township, supra, United States District Court, Civil Action No. 01-1919. "[T]he burden imposed on the [society] does not prevent conduct mandated by a central tenet of its religion . . . it is only an indirect financial and aesthetic burden." Id. "[T]here is no indication that [the society] is precluded from fulfilling its religious mission through worship as a whole, or through its various other activities, in other locations throughout the [town]. See Lakewood [Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307 (6th Cir), cert. denied, 464 U.S. 815, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983)]. Nothing in the record suggests that the [society] could not [continue to] lease or sublease an existing church or meeting hall to facilitate its worship as a whole, or its other religious endeavors . . . [s]ee Love Church v. City of Evanston, 671 F.Sup. 508, 513-14 . . . [a]lthough [t]hese alternatives may be less appealing or more costly . . ." (Internal quotation marks omitted.) Episcopal Student Foundation v. City of Ann Arbor, supra, 341 F.Sup.2d 705.
After reviewing the complete return of record and the evidence outside the record pursuant to § 8-8(k), the court finds that the society failed to meet the initial burden of demonstrating that the commission imposed a "substantial burden" on religious exercise. The court further finds that the society has not met its burden of demonstrating that the commission's denial imposed a "burden" on its religious exercise. Whereas the denial of the special permit did not impose a burden on religious exercise, the court need not reach the question of whether the commission can justify these reasons by articulating a compelling government interest. See Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d 1228.
The court, however, is not unsympathetic with the society's concern that a commission may use technicalities in the zoning regulations as a pretext to prevent development projects it deems undesirable. Indeed, Sts. Constantine demonstrates the lenity of the substantial burden test when it is apparent that an administrative body is "playing a delaying game" that emits a "whiff of bad faith" over the rejection of a submitted application. Sts. Constantine Helen Greek Orthodox Church v. City of New Berlin, supra, 396 F.3d 899, 901. Even the Second Circuit, with its stringent view of what constitutes a substantial burden under the free exercise clause, acknowledges that a substantial burden may be found where a commission's willingness to consider reapplications is "disingenuous." Westchester Day School v. Village of Mamaroneck, supra, 386 F.3d 188 n. 3. "[I]n some circumstances denial of the precise proposal submitted may be found to be a `substantial burden' notwithstanding a board's protestations of willingness to consider revisions — for example, where the board's stated willingness is disingenuous, or a cure of the problems noted by the board would impose so great an economic burden as to make amendment unworkable, or where the change demanded would itself constitute a burden on religious exercise." Id. The commission would be wise to remain cognizant of these admonishments in its future interactions with the society. In the interest of assisting the parties in the process, the court will briefly articulate its views on each reason the commission denied the society's application.
The commission denied the society's request for a special permit for six reasons. Had a prima facie case been established under RLUIPA or the RFA, it is worth noting that the court would have found that at least four of the cited reasons neither constitute a compelling government interest nor prevail as the least restrictive means of furthering that interest. These denials are as follows:
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.
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.
The commission found that the society did not meet these four requirements of the zoning regulations of the town of Newtown. In the letter of denial the commission stated: "Harmony is in the eye of the beholder — many find the temple appearance is extremely uncharacteristic of the neighborhood and therefore very objectionable" and "the churches with the comparable sales were of a typical New England design versus a traditional Buddhists' temple design." (ROR 4.) Notwithstanding the commission's attempt to apply the town's zoning regulations, each of these four reasons, in effect, would prevent a "nontraditional" non-Judeo/Christian religion from building its temple in the town of Newtown. "[A]pplication of some of the more intrinsically vague standards, such as architectural harmony and integrity of the neighborhood, are viewed with stricter scrutiny, both because of the more obvious religious overtones of features such as architecture and of the possibility of exclusion for suspect reasons." Farmington Avenue Baptist Church v. Planning Zoning Commission, supra, 35 Conn. L Rptr. 211, citing Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002); Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 549 A.2d 1076 (1988), Grace Community Church v. Planning Zoning Commission, supra, 42 Conn.Sup. 256. Under the foregoing standard, any argument that these four reasons rise to the level of a compelling government interest would likely fail. Moreover, for the purposes of the present appeal, the court finds insufficient evidence in the record to support the commission's denial on the above grounds.
However, there are two other reasons that the commission cited for its denial of the special permit. Should the record disclose evidence that supports any one of the reasons, the court must dismiss the society's appeal. Those reasons are as follows:
(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.
The court will address each one of these denials separately.
SECTION 8.04.740
First, the denial as to Section 8.04.740, traffic conditions. The society presented a traffic study to the commission which the commission rejected finding it to be inadequate. In its denial letter (ROR#4) the commission stated: "Boggs Hill Road is a small paved two-lane country road characterized as winding and narrow. The road is often used at speeds generally in excess of the posted limit. The neighbors report that, although police reports record about one accident a month, many accidents take place . . ." The denial goes on to state: "The commission's concern is during a [f]estival's peak traffic period when multiple cars arrive at approximately the same time of 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 on Boggs Hill Road . . ." It also discussed the curves in the road and problem which have arisen due to the curves.
In Bethlehem Christian Fellowship v. Planning Zoning Commission, supra, 73 Conn.App. 470, the court stated: "[T]he consideration that applies to zoning applications is not the overall volume of traffic, but whether the increase in traffic will cause congestion . . . In addition, a land use agency cannot deny an application for a permitted use because of off-site traffic considerations." (Citations omitted.) Id.
The record does not support the board's conclusion that the proposed use could cause a detriment to the neighborhood by reason of traffic and congestion. A religious structure is a permitted use, an increase in traffic does result from same no matter where the church, synagogue or temple is located. The comments of the neighbors and first selectman 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.
The exploration of traffic and parking alternatives has particular bearing on a free exercise and RLUIPA individualized assessments analysis, but these issues also pertain to the second prong of the test "in which [the court] would seek to determine whether [the commission's] actions serve a compelling government interest through the least restrictive means possible." See Murphy v. Zoning Commission, 402 F.3d 342, 352 (2d Cir. 2005).
No controlling authority exists, either in the Supreme Court or any circuit holding that traffic problems are incapable of being deemed compelling. Westchester Day School v. Village of Mamaroneck, supra, 386 F.3d 191. "While it is true that there are no authoritative cases holding that a traffic concern satisfies the "compelling interest" test, nor are there authoritative cases holding that a traffic concern cannot satisfy the test." Id. Very few rulings discuss the question, none arising under RLUIPA. Id. Having determined that the society has not suffered a burden on its religious exercise, the court need not reach this issue in the context of the present appeal.
SECTION 8.04.750
The last reason for the denial was the health and safety issue under Section 8.04.750.
When the commission denied the society's application, the commission contends that the septic system had yet to be approved and no adequate water supply was available for the property. The society argues that the commission should have conditioned approval on its obtaining of septic and water permits. For support, the society cites a letter from the department of public health stating that the septic system generally met the health code requirements, while the commission produces reports and testimony from environmental experts and a civil engineer identifying problems with the proposed septic system.
As a general rule, an application which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control should not be sustained routinely unless the necessary action appears to be a probability. See, e.g., River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 41, 56, 856 A.2d 959 (2004) (discussing cases analyzing conditional approvals under a variety of zoning applications). The only consequence of a denial on this ground is that, once the society obtains the relevant permits, the society must either resubmit the current application or a modified plan. Id., 64.
In a case with two vigorous dissenting opinions, however, our Supreme Court recognized a distinction between special permits and other zoning applications. See Lurie v. Planning Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971). The court noted that a "strict application of the rule . . . to instances of exceptions and special use permits may often prevent desirable changes where the accomplishment of the change depends on cooperative or dependent action by the zoning authority and other municipal agencies over which it has no control. In such instances it is, of course, desirable, where feasible, that the [z]oning authority ascertain that there is a reasonable probability that such action will eventuate. In many circumstances, however, other municipal agencies may properly be reluctant to commit themselves to a course of action before knowing that if such a commitment is made it will meet such conditions as the [z]oning authority will deem advisable. Such a stalemate is clearly undesirable. Under such circumstances, where cooperative action is necessary to accomplish a desirable result, a stalemate can best be avoided by approval which may be conditional. [The court], accordingly, [held] that where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition." Id., 307.
The Lurie case, and the Superior Court cases interpreting it, all arise out of a third party's challenge to a zoning authority's decision to approve a special permit subject to subsequent approvals by other agencies. See, e.g., Savin Gasoline Properties, LLC v. Planning Zoning Commission, Superior Court, judicial district of Norwich, Docket No. CV 124145 (January 10, 2003, Purtill, J.T.R.) (substantial evidence property would be hooked up to sewer line); Mimms v. Planning Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 028405 (June 11, 1993, Levin, J.) ( 9 Conn. L. Rptr. 159) (commission did not act illegally in conditionally approving special permit). None of the decisions review a zoning authority's discretion to deny an application for a special permit instead of granting conditional approval subject to subsequent agency approvals. Compare Kaufman v. Zoning Commission, 232 Conn. 122, 164, 653 A.2d 798 (1995) (zoning commission not merely authorized, but required to approve a zone change for affordable housing development conditioned on obtaining approval of coordinate agencies). The commission may consider general health, safety and welfare requirements in the regulations not only for the purpose of placing conditions on a special permit, but may also consider the requirements in determining whether to deny or grant the special permit. Whisper Wind Development Corp. v. Planning Zoning Commission, 32 Conn.App. 515, 522, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). See also Mason v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 95 0373276 (December 14, 1995, Booth, J.). Inasmuch as the society has not demonstrated a prima facie case under the RLUIPA or the RFA, the court declines to determine whether the failure to grant conditional approval rises to the level of a compelling government interest. Under the ordinary judicial standard of review applicable to special permits, however, the court finds that the commission did not act illegally, arbitrarily or in abuse of its discretion when it denied the society's application.
CONCLUSION
Reviewing the facts in the present appeal, the society's claim alleging a violation of the equal protection clause is unavailing because the court finds no evidence of selective treatment. The court further finds the society has neither established a "substantial burden" nor a "burden" on religious exercise sufficient to meet its prerequisite burden for a claim under the RLUIPA or the RFA. As a final matter, the court finds insufficient evidence to determine that the commission's denial of the special permit, pursuant to substantial evidence in the record, was unreasonable, arbitrary, or illegal. The society's appeal is, accordingly, dismissed.