P&Z's Buddhist Temple Rejection Upheld By Court Decision

By Andrew Gorosko, The Newtown Bee, Nov 23, 2005

Newtown, Connecticut (USA) -- In a November 18 decision, Danbury Superior Court Judge Deborah Kochiss Frankel upheld the Newtown Planning and Zoning Commission's (P&Z) February 2003 rejection of a proposal to build a 7,600-square-foot Buddhist temple and meeting hall at a ten-acre property in a residential area at 145 Boggs Hill Road.

In its application for a special exception to the zoning regulations, the Cambodian Buddhist Society of Connecticut, Inc, had sought to develop the site with a temple and meeting hall to serve its congregation. The society, which owns the property, has a Buddhist monastery there.

Following lengthy consideration, P&Z members in February 2003 unanimously rejected the temple/meeting hall proposal, noting that the Buddhists' envisioned use of the property, involving increased traffic and noise, would be "far too intense for this particular site."

The project had previously gained endorsements from the Zoning Board of Appeals and from the Conservation Commission, serving as the town's wetlands agency.

The temple/meeting hall proposal drew heavy opposition from nearby property owners, who listed traffic problems and noise among their main complaints.

In March 2003, citing religious freedom, as protected by federal and state law, the society filed a court appeal in seeking to overturn the P&Z's rejection of its application. Through the appeal, the society sought to have a judge order the P&Z to approve the temple/meeting hall application, among other legal relief.

In her 35-page legal decision, Judge Frankel wrote, "The society's claim alleging a violation of the equal protection clause [of the law] 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 [applicable federal and state law]. ...The court finds insufficient evidence to determine that the [P&Z'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."

P&Z member Lilla Dean said November 22, "I hope the Buddhists can find a better place for their temple." The society had proposed a much too intense use for the 145 Boggs Hill Road site, she said.

Listed as intervenors in the court appeal are Boggs Hill Road area residents Richard and Jeanette Coburn, William Leibold, Pamela Ashbahian, Janis and Stuart Opdahl, and Anthony and Christina Russo. The intervenors, who sided with the P&Z, oppose the temple application. The intervenors entered the case in June 2003.

In response to Judge Frankel's decision, Mr Coburn said on November 22, "We are quite pleased with the judge's ruling." Mr Coburn heads the ad hoc Newtown Residential Preservation Society, a group of residents that formed in opposition to the Buddhist temple application.

Mr Coburn said he hopes that the Buddhist society would seek another location, in Newtown or elsewhere, which would be a more suitable place to construct a temple/meeting hall for its members.

At a session last June at which P&Z members discussed the then-pending Buddhist society court appeal, P&Z members said they would be willing to help the Buddhist society find a "suitable location" for a temple/meeting hall somewhere in Newtown.

Pong Me of Bristol, president of the Buddhist society, could not be reached for comment.

Attorney Marvin Bellis of the Hartford law firm Murtha Cullina, LLP, which represents the Buddhist society, said November 22 that he had just received a copy of Judge Frankel's decision and would be reviewing its contents with his client to decide how to proceed.

Mr Bellis said that no decision has yet been made on whether the society would appeal Judge Frankel's decision to a higher court, would submit a new temple/meeting hall application for P&Z review, or would both appeal the decision and also submit a new P&Z application.

First Selectman Herbert Rosenthal said of Judge Frankel's decision, "I did not think that the P&Z violated anyone's religious freedoms...It's always a relief that the court concurs."

The location is not a good location for the proposed use for a variety of reasons, Mr Rosenthal added.

Mr Rosenthal said P&Z attorney Robert Fuller represented the town well in the court appeal.

Judge's Decision

In August 2002, the Buddhist society filed a P&Z application for a temple/meeting hall, seeking a special exception to construct a house of worship at 145 Boggs Hill Road, an area which has R-2 Residential zoning. The minimum lot size for a single-family house in that area is two acres.

In its court appeal following the P&Z's February 2003 rejection, the society claimed that the P&Z decision was arbitrary, illegal, and in abuse of the P&Z's discretion, that the rejection violated the federal Religious Land Use and Institutionalized Persons Act, and also that the rejection violated the provisions of the state's Religious Freedom Act,

The Buddhist society bought the Boggs Hill Road property in 1999. Pong Me had testified in court that the property had all the qualities that would be needed for a temple site. The society currently has no temple, but rents space in various locations to conduct religious services.

In her decision, Judge Frankel wrote, "The society failed to meet the initial burden of demonstrating that the commission's denial imposed a 'burden' on its religious exercise...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."

In February 2004, Judge Barbara Bellis dismissed an administrative appeal brought by five Boggs Hill Road area residents against the Conservation Commission, challenging that agency's November 2002 issuance of a wetlands permit to the Buddhist society for temple/meeting hall construction at 145 Boggs Hill Road.

In their February 2003 rejection of the Buddhist temple application, P&Z members stated, "Although the [P&Z] would welcome the Buddhist religion into the community, the planned and expected future level of activity proposed...is too intense."

P&Z members found that the ten-acre sloping site at 145 Boggs Hill Road holds a significant amount of wetlands. Such a constraint would limit the area available for existing facilities, the proposed temple/meeting hall, parking spaces for about 150 vehicles, and activities involving 450 or more people on weekends, according to the P&Z.

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

After the Buddhists acquired the Boggs Hill Road property in early 1999, nearby residents complained to the P&Z that the Buddhists held large events there that created noise and traffic problems. Based on those complaints, the P&Z issued a cease-and-desist order against the Buddhist society not to hold such gatherings unless it received a special exception to do so. Through its August 2002 P&Z temple/meeting hall application, the society had sought that special exception.
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