*1 diminution defendant as to enlargement force. is and of purely advisory judicial no taking Wood, Plunske 370 A.2d Conn. The to our an arithmetic attention plaintiffs bring $341,000 error in The finds the judgment. judgment as the The states taking. finding damages controlling. damages $329,382. to be The is finding award, deducting $118,900 deposited, after should be corrected to $210,482. aside and
There is set error, judgment judgment ease with direction to render is remanded from for the with interest $210,482 plaintiffs date of 1974, pay- date of deposit, February 5, fees include ment, appraisal which costs costs, in the amount fees expert testimony $3100. In this the other concurred. opinion judges Appeals Havurah et al. al. et of Norfolk Town Shea, Js.
Loiselle, Bogdanski, Longo, Peters D. January May released Argued 5 decision *2 bar, Tork W. Horton the New Wesley and, Peter C. Dershowitz, Nathan Z. were with whom bar, Tork Herbst the New brief, on the also of and, M. Jacoby, for the (named plain- Stephen appellants tiff et al.). Lichterman, pro se,
Paul appellant (plaintiff). an Stedronsky Quinlan, Jr., Edward J. H. James M. Cusick, David for the (defendants). appellees curiae. H. William Shure filed as amicus a brief town impact J. This case concerns the Peters, In on a zoning regulations synagogue. Jewish Beit purchased Havurah1 district located within a residence” “village zoning in the town of Norfolk. At the time of purchase, included zoning regulations permitted applicable in such district places uses a “churches and other The reg- related worship” “accessory uses.” a for such a required ulations district, however, use reli- special educational, permit “non-profit gious, scientific charitable institutions.” fraternal, determined, defendant board of zoning appeals after extensive hearings, May, 1976, provision Havurah and that place worship was a sleeping building designated use permitted on certain accessory religious provides place for society Havurah 1 Beit is a purpose of together fur persons spend days several devout events, study and prayer, religious of festivals Jewish celebration satisfying requirements. religious meals nights. That determination left whether open accom- modations on other nights might also constitute In accessory use. subsequent proceedings, the defendant November, 1976, board of appeals concluded that the of unrestricted providing accommodations, dates other than those previously was not an designated, use a house of but worship was rather a special institution and as such required applica- tion for a permit. Separate appeals were taken to the Court of Common Pleas, by neigh- *3 boring landowners with to the defendant respect board’s May Beit decision, the plaintiff Havurah with respect November to the defendant’s decision. The court trial the appeals consolidated both upheld decisions.2 No further appeal taken from the first but decision, the plaintiff Havurah has dis- appealed3 from the judgment its missing appeal of the November decision. It is before we important, address the merits this appeal, what is no It clarify at issue. longer has been dispositively determined that Beit Havurah is place Beit Havurah’s worship, synagogue. use of its is a property permitted it to use, entitling 2The trial court found that Beit Havurah was aggrieved by the zoning decision of the appeals, Norfolk board of but refused to find that individual members of Beit Havurah were independently aggrieved. assigned This failure to find has been error. Whether it was in any error is irrelevant because determina tion aggrieved as to additional parties would have no effect on the appeal. outcome of Planning this Schwartz v. Town Com & mission, n.2, A.2d 1378 We will plaintiff, therefore refer to the Beit Havurah, singular. in the The defendant board appeals is the named defendant case; neighboring this May appealed landowners who permitted decision were to intervene as herein but codefendants assert no distinguishable interest from that of the named defendant. plaintiff’s appeal The grant followed the of certification this court. except occupy premises for restriction without its sleeping providing contested membership guests. any At time of its may premises day night, use its or Beit Havurah religious prayer, celebration festivals and religious satisfying study, Jewish meals events, appropriate requirements its or other activities accessory style worship, uses as well as for other sleeping Even such as recreation or maintenance. permitted accommodations are a holiday nights when those Sabbath and in effect travel restrictions of the law are Judaic night beyond the of each Sabbath and for one end holiday. designation particular use of of a property permitted use establishes a conclusive as a adversely presumption affect that such use does not precludes inquiry into district and further municipal property values, effect on traffic, services, Although general harmony or the of the district. whose use constitutes a regulation nui- not immune from under the laws of applicable those sance or such as other statutes *4 any relating public safety, to no violation of such alleged. laws has been plaintiff argues
The that the trial court was plaintiff’s dismissing two in error in reasons the appeal defendant from the November decision of the zoning plaintiff appeals. board of The maintains finding improperly lack that the court acted that overnight reli- the did not limit concluding, gious activities of Havurah and in accordingly, overnight lodging that unlimited not further an use. claims requiring plaintiff to the that court erred in the zoning through application for exhaust its remedies, 444 the before it would permit, consider the such secular restrictions
constitutionality use of religious property.
The trial court’s
accom
finding
from Beit
modations were severable
acces
and hence not a
activities,
reached
sory use, was an affirmance of the conclusion
the
Review
appeals.
defendant
board
zoning
within
acting
decisions of local
authorities
zoning
deter
their
is limited to a
administrative
capacity
zoning
the
on the record before
mination, principally
illegally,
board acted
board,4
whether
or in abuse of the discretion vested
arbitrarily,
164
Commission,
it. Tazza &
Planning
Zoning
Kyser
Conn.
A.2d
393
A.2d
236,
Conn.
when
recently reiterated,
As we have
appeal
prom
court,
8-8.
Sec.
board to
“[General Statutes]
by supreme
Auy
persons severally or
person
or
review
court.
may,
.
jointly aggrieved
.
.
within
by any decision of said board
pub
days
fifteen
such decision was
from the date when notice of
judicial
appeal
superior
. .
court for the
lished
. take an
to the
appeal shall
municipality
located,
which
district
which such
pre
in the
manner as
be made returnable to said court
same
court, upon
.
brought
court.
. . The
scribed for civil actions
to said
and shall
appeal,
proceedings
such
of said board
shall review
to
any
in addition
party
appeal to introduce evidence
allow
to such
if
the contents
of the
returned
said board
of the record
ease
proceedings
complete transcript of the entire
reeord does not contain a
pursuant
presented
it,
including all
board,
before said
evidence
appears
appeal, it
8-7a,
hearing upon such
if, upon
or
section
equitable
necessary for
testimony is
to the court that additional
such
disposition
may
The court
take
evidence
appeal.
of the
it directs
appoint a referee or committee to take such evidence as
facts
findings of
report
court,
his or its
the same to
*5
the
part of
law,
report
and
constitute a
conclusions of
which
shall
proceedings upon
of the court shall
which the determination
thereon,
hearing
eourt, upon
appeal
after a
made. The
such
the
may
may modify or
affirm, wholly
partly, or
revise
reverse or
appealed from. . .
decision
authority
its
zoning
the reasons for
has stated
ought
reviewing
examine the
court
to
the
actions,
they
assigned grounds
are
whether
to determine
pertinent
by
supported
reasonably
the record and
authority
required to
the
was
to the considerations
Goldberg
regulations.
zoning
apply pursuant to the
Zoning
A.2d
Commission,
23, 25-26,
Planning
Com
&
DeMaria
The
before us is whether the reasons
assigned by the memorandum
of decision of
pertinent
board November are reasonable
light
May,
of the board’s
now
decision
which has
become the
record
law of the
as well as the
case,
produced before the
It
that
board.
is not relevant
zoning regulations
under different
Beit Havurah
might
Hart
not have been a
West
use;
Methodist
Church
ford
it is
A.2d 640
longer
might
no
relevant whether
earlier
the board
have determined Beit
insti
Havurah to be a
eligible only
special
tution,
for consideration as a
worship, permitted
use, rather than a house of
use.
practical
effect of the board’s decision is either
persuade
late-night
to
Beit Havurah to curtail its
premises entirely, purpose
use of its
disclaimed
require
the defendant’s brief, or to
Beit Havurah
overnight lodging
members
seek
at one of the local
Although
permit,
granted,
motels.5
if
problem,
would obviate this
that alternative cannot
dispositive
as to whether Beit Havurah has a
right
special permit.
to an
use without City
Cf. Moore v.
East
Cleveland,
U.S.
97 S. Ct. 1932,
The criteria that determine use is whether a acces- of sory must, necessity, shaped by primary it to which is incidental. reasonable What is a Lawrence use for accessory private dwelling; Zoning 264 A.2d Conn. is therefore not a helpful precedent determining what with and subor- “customary dinate to” a house of A worship. authority leading notes, “It describing uses to churches: accessory has been previously commented the con- upon cept what from constitutes a church has changed place worship alone, week, used once or twice a church used the entire week, as during nights well days, as various parochial community to the extent arises as . The question
functions. . . covered are the additional activities to which been has traditionally which inununity the cloak the courts The language extended to church. find it is difficult cases indicates in several would church, if sponsored an activity which, Law not share the inununity.” Rathkopf, Rath- 20-53 (1978). Planning, 20.03, p. § far- such uses cites as kopf and playgrounds, lots activities ranging “parking . care day . . and monasteries rectories, convents, softball centers, rehabilitation centers, drug *8 Id., fields.” 20-54. in its November
If the of the board reasoning decision is framework of acces- into put legal inter- can be sory use board’s statements issue, unre- that Beit Havurah’s as a conclusion preted stricted use of its on occasions overnight premises not a travel restrictions was governed by Judaic secular use not and sub- “customary of its property, ordinate” to house of The evidence worship. a in the defendant’s of this conclusion is cited support brief. Most of Beit use of its overnight Havurah’s of has taken place during periods Contemporary lodg- travel restrictions. in other relates to weekend ing synagogues only then is limited to five use, synagogues and even only in the state. Other do not have bed- synagogues while the Beit Havurah house has rooms, eight bedrooms and one room com- only and one prayer munity room. city to a According professional planner, religiously living arrange- motivated group ments should families be considered or seven “six living together a single family zone,” of dependent upon grant permit. All of this evidence of the record before part was the board the time of its May at and was decision, by reference, agreement incorporated all the November decision. The parties, city relevant to the planner’s testimony, although decision original about Beit primary status a house little worship, light sheds use. For the plaintiff, there extensive evidence was before the board that Beit a nontraditional Havurah, had synagogue, nontraditional needs. The purpose of Beit in the deci- Havurah, accepted May board sion, provide an intensive religious fellowship “gathered” coming congregation, membership from as far afield as Massachusetts and Washing- D.C. ton, goal Beit Havurah was to stimulate and support close, personal interaction worship among small subgroups. Central to this kind of religious community is the time, concept shared during which the members together come and remain in a variety of worship ways, praying, studying, celebrating religious festivals, preparing meals according to religious laws. These religious activi- ties can place take at any time the week, and can *9 continue on into the night, or extend over several For days. such a religious community, overnight are without essential; them, Beit Havurah, it was could not testified, exist. This evi- dence was challenged by cross-examination both before the board and before the trial but court, remains essentially uneontradieted.
When this record is in viewed its entirety, due is regard given to the plaintiff’s established as status a house of it is worship, clear that defendant board’s denial of accessory use cannot stand. Nontraditional well as syna- traditional gogues are protected provisions of the state
450 guaranteeing
and federal constitutions
freedom
religion.6
religious
legitimacy
of nontraditional
customary
practices
depend upon
cannot
what
religious groups.
among
United
more traditional
88
States
322
64
Ballard,
882,
U.S.
S. Ct.
(1944);
McCormick,
L.
Follett v. Town
Ed. 1148
321
L. Ed.
64 Ct.
573,
717,
U.S.
S.
577,
recognized
particular
reli
What are the
tenets of
gious group
decision.
is not matter for secular
religious
it
faith that eccle
is the essence of
“Indeed,
accepted as
are reached and to be
siastical decisions
or not rational or measur
faith whether
matter's
objective
Ortho
Eastern
able
criteria.” Serbian
Milivojevich,
696,
714-15,
dox
U.S.
Diocese v.
(1976). Beit Havurah
Ed. 2d
2372,
S. Ct.
49 L.
sleeping
has
without
testified,
contradiction,
religious fellow-
to its
accommodations are essential
severely
«hip,
limit
would
their absence
and that
never asserted
has
activities. Beit Havurah
any
using
for other
in
interest
its Norfolk
religious purposes,
evidence
there is no
than
solely
There
of members.
vacations
con
for the board’s
fact
was therefore no basis
lodging
a clusion that unrestricted
operation,
type
unrelated
residential or resort
ground,
worship.
right
No other
Havurah’s
highest
countervailing
order”;
“of
no
interest,
1526,
92 S. Ct.
Yoder,
406 U.S.
Wisconsin v.
deny
been advanced
6 U.S. amend. Because of our holding that Beit use of its constituted a permitted use, we need not consider the constitutional implica- tions of permits institu- tions.
There is error, the judgment is set and aside, the case is remanded with direction to sustain appeal to reverse the order the hoard. Lqiset.be In this opinion concurred. Js., Longo, J. I agree While (concurring). Bogdanski, the dissent on zoning hoard, the basis the evidence before could have deter- it, initially provision mined that accommoda- overnight tions the plaintiff was not an use” “accessory under existing on the zoning regulations ground that such activity was not “customary” with of the as a house premises the record worship, reveals that the board found the con- expressly trary, ruling overnight accom- provision on nights modations when there are travel restric- tions under Judaic law constitutes “accessory an use” and is therefore As now permitted. things stand, provision
by Beit Havurah is on all Sabbath and religious holiday nights when travel restrictions are in effect, and for one night which means subsequent, that overnight every accommodations are allowed Friday key well as on certain Saturday, Jewish from holidays.1 No that decision appeal been having taken, that decision is now final. September 20, 1 In Lichterman, a letter dated 1976, from Paul ease, “worship in this to the appeals, board of certain periods” having were listed as travel restrictions: *11 452 over- determination the board’s mind,
To my an nights on certain are night accommodations necessarily precludes final, once accessory use, overnight ruling from subsequently board on on i.e., nights on nights, other under Judaic restrictions which there are no travel it is appar- because also law, uses, are not determination this later ent from the record that involves govern- and religious on premised grounds constitutionally prohib- in a entanglement mental ited area. limit or qualify
To board to permit of religious the use the basis already granted or absence travel grounds, i.e., presence to permit in law, is, effect, restrictions Judaic into of a validity par- a secular inquiry by body days Day Judgment, Year 2 New and Hashanna —Jewish “Bosh September. 2 nights generally and falls — 10 day, 1 Kjppur Day night 1 and falls of Atonement. Yom — days after Bosh Hashanna. begins days 15 after Bosh Hashanna Succot —Festival Booths— nights con- days nights. days and and 9 The first 2 and are lasts 9 major sidered a festival travel restrictions. with days nights 2 Torah —The last and Atzeret Shemini and Simhat dancing major of the by singing, Festival. A festival marked Succot parading night. and at with Torah Scroll nights. Festival, lasting Pesach —Passover Feast of Matzot 8 days major days first two and the test two are festivals nights by special travel restrictions. The two meal first are marked Seders, lasting ealled There celebrations several hours. are dietary during period. day restrictions the entire 8 Pesach falls April. Giving Shavuot —Festival of or Festival of the the Ten Weeks days Commandments. It weeks It falls seven after Pesach. lasts nights. study Traditional celebration consists until daybreak, and morning prayers. night Sabbath —The Sabbath, day. Every night Friday and Saturday day by prayers, special meals, study celebrated apply period.” relaxation. Travel worship restrictions to this See Serbian belief or practice. ticular *12 Diocese v. Milivojevich, Eastern Orthodox U.S. Presby Ct. 696, 96 S. L. Ed. 2d 2372, Presbyterian terian Hull Memorial Church Church, 393 U.S. 21 L. 2d 89 S. Ct. Ed. 601, Entanglement in religious matters (1969). can lead to limitations governmental body easily on the impermissibly free exercise religion on infringes the constitutional against prohibition laws respecting practice establishment religion.
I must, therefore, with join my colleagues holding that of the must be appeal plaintiffs sustained.
D. Shea, J. I The issue (dissenting). disagree. this presented by case essentially is factual one— whether the use of the plaintiff’s for over- night lodging its members, without restriction to weekends and religious accessory is an holidays, use to use as a “church or other place worship.” Under zoning regulations an acces- use sory must be with and “customary subordinate to” the principal it and must also be located on the same lot. There is no serious but question that the use sought by the plaintiff is incidental or “subordinate to” the principal use of the property as synagogue, that it is on the same I lot. do not agree, however, that the board of was appeals bound to conclude from the evidence presented at that hearing providing lodging members without limitation was “customary with” the prin- cipal use.
The fact that providing overnight accommodations may of the part religious tradition of the plain- tiff or that the denial of the privilege would impose it would such a use hardship
some
not render
upon
This word in an
“customary.”
provi-
sion
court
determine whether
it
“to
requires
use in
the pri-
to maintain the
question
usual
use of the land.” Lawrence
mary
may have relied this evidence upon well holidays weekends or such lodging “customary,” sought but that the unlimited use *13 stated rare,” the or as “truly unique was to For a use qualify one of its members. use the incidence accessory principal of the similar principal that use conjunction than unique of must be “more uses other properties Appeals, Board Zoning rare.” Lawrence or v. of arbitrary unreasonable or It not supra, 513. was did for evidence the have found that the board to not lodging establish that providing customary usual members without restriction was concluded properly for a The board synagogue. the plaintiff the use requested by that unrestricted not be in extent that it could extraordinary so that it should more use and regarded as an subject exception of a special be the appropriately suitability the of institution where a religious examined a use could be for such to the standards pertaining under the applicable facilities as water, sewage parking adequacy The effect of protection. well as fire and police such preclude any is to majority decision of the inquiry. the majority opinion
The suggestion in a are shrouded worship churches or places immunity” operation “cloak of from zoning regulations previous is not consistent with decisions this court. Catholic St. John’s Roman Corporation Church v. Darien, 149 Conn.
184 A.2d
Methodist
West Hartford
Zoning
v.
Church
263,
143 Conn.
(1956).
implica
which
majority
induced each of the three
members
they
of the
ought
board to vote as
did
not
equivalent
treated as the
of a formal statement of
the reasons for the action of the board. See DeMaria
Planning
&
Commission,
540,
constituted an principal use of synagogue. aas judgment I would affirm the of the trial court.