Woodland Cemetery Association (the “Association”) appealed the Zoning Board of the City Stamford, Connecticut’s denial of an application to make several improvements to an existing cemetery within a “coastal area” regulated under Connecticut’s Coastal Management Act (the “Act”), Conn. Gen. Stat. § 22a-90 et seq.  In Connecticut, site plan applications for property located within a coastal area must demonstrate compliance with the Act, in addition to compliance with local zoning regulations.  Among other improvements, the Association applied to remove invasive species, install drainage, excavate soil, and extend an existing driveway in the cemetery.

The Association argued that its proposed improvements on the 35 acre site were exempt from the Act and local regulation because the proposed “restoration and beautification” activities would not “alter” coastal resources.  Given the extent of the repairs and the fact that some earth moving and tree removal activities occurred before the Association even sought a permit, the Court found that the Zoning Board’s decision to deny an exemption from the Act was neither arbitrary nor capricious.

Next, the Association argued that it was arbitrary for the board to deny its application as incomplete. Although the improved area would be used for future gravesites, the Association refused to provide information about the number, location and nature (above or underground) of future burial plots.  The Zoning Board denied the application based on the lack of such details.

Finally, the Court considered whether the Zoning Board’s denial violated RLUIPA. The Court’s consideration of RLUIPA’s substantial burden provision is notable in that it highlights a degree of discord between Connecticut state court and Second Circuit precedent.  In this case, the Court, relying on Cambodian Buddhist Soc’y of Conn., Inc. v. Planning & Zoning Comm’n, 285 Conn. 381 (Conn. 2008), concluded that a zoning regulation that is “applicable without discrimination to all property owners in a jurisdiction… does not constitute an ‘individualized assessment’….”  Therefore, under Connecticut precedent, non-discriminatory application of a neutral zoning regulation cannot violate RLUIPA’s substantial burden provision.  The Second Circuit has held, however, that application of neutral and generally applicable laws does, in fact, constitute an “individualized assessment,” which invokes RLUIPA’s substantial burden provision. (See a prior post regarding the decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (2d Cir. 2014) here.)  Most other courts around the country agree with the Second Circuit’s analysis.

At least in Connecticut, this decision and the Connecticut Supreme Court’s decision in Cambodian Buddhist Society, provide ample motivation for religious land use applicants to pursue RLUIPA claims in federal court only—a tricky and important consideration when also filing a zoning appeal under Conn. Gen. Stat. § 8-8 which provides that such an appeal must be commenced within 15 days of publication of legal notice of the agency’s action.

Original photograph by Whatknot, some rights reserved

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