McLoughlin v. Planning & Zoning Commission ( 2020 )

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B. SHAWN MCLOUGHLIN ET AL. v. PLANNING
AND ZONING COMMISSION OF THE
TOWN OF BETHEL
(AC 42561)
Keller, Prescott and Devlin, Js.
Syllabus
The plaintiffs, M and M Co., appealed to the Superior Court from the decision
of the defendant town planning and zoning commission denying their
application for a special permit to construct a crematory on property
owned by M that is located in an industrial park in the town. Prior to
filing their application, the plaintiffs proposed a text amendment to the
town’s zoning regulations that would make the operation of a crematory
a specially permitted use in the town’s two industrial zones. Following
the commission’s approval of the text amendment, the plaintiffs submit-
ted their special permit application and an application to construct
and operate a crematory. Thereafter, the commission adopted a text
amendment filed by the intervening defendant that repealed the prior
text amendment, and, after holding four public hearings, it denied the
plaintiffs’ special permit application, determining that the plaintiffs failed
to meet their burden of demonstrating that their application satisfied
certain criteria for special permits set forth in the applicable town zoning
regulation (§ 8.5.E). The Superior Court subsequently dismissed the
plaintiffs’ appeal, concluding that there was substantial evidence in the
record to support the commission’s denial of the plaintiffs’ application,
and the plaintiffs, on the granting of certification, appealed to this
court. Held:
1. The plaintiffs could not prevail on their claim that the Superior Court
improperly concluded that there was substantial evidence in the record
to support the commission’s denial of their application for a special
permit, as there was substantial evidence in the record from which the
commission reasonably could have determined that the plaintiffs failed
to meet their burden of demonstrating that their application satisfied
the general standards set forth in §§ 8.5.E.3 and 8.5.E.4 of the zoning
regulations: on the basis of the testimony and the evidence in the record,
the commission reasonably could have concluded that, by allowing the
plaintiffs to operate a crematory at the location they proposed, the
development of the industrial park and surrounding area and the welfare
of the town would be adversely affected in that businesses and individu-
als would be less inclined to either remain in or to purchase property
in and around the industrial park and property values in the industrial
park and surrounding area would be depressed; moreover, contrary to
the plaintiffs’ claim, the Superior Court properly relied on St. Joseph’s
High School, Inc. v. Planning & Zoning Commission (176 Conn. App.
570) in dismissing the plaintiffs’ appeal.
2. The plaintiffs’ claim that the commission improperly failed to consider
their application for a special permit on the merits because of its predis-
position to keep a crematory from being located in the industrial park
and its conviction that it made a legislative misjudgment in adopting
their proposed text amendment was unavailing: contrary to the plaintiffs’
assertion that the commission’s reasons for denying their application
were insufficient, the commission authored a detailed resolution of
denial in which it stated that it denied the plaintiffs’ application, in part,
because it failed to satisfy both § 8.5.E.3 and § 8.5.E.4 of the zoning
regulations, and this court concluded that the commission’s denial of the
application on the basis of those provisions was supported by substantial
evidence; moreover, the plaintiffs’ reliance on Marmah, Inc. v. Green-
wich (176 Conn. 116) in support of their predetermination claim was
misplaced because, unlike in that case, in which deliberation over the
plaintiff’s site plan application was afforded one public hearing before
being denied, the plaintiffs’ application in the present case was afforded
attention at four public hearings at which the commission entertained
an immense amount of evidence and testimony; furthermore, to the
extent that the plaintiffs challenged the commission’s authority to repeal
a text amendment to the zoning regulations despite contrary findings
that it made when had it adopted the amendment, that argument was
without merit in light of the commission’s broad discretion when acting
in a legislative capacity.
Argued May 13—officially released September 22, 2020
Procedural History
Appeal from the decision of the defendant denying
the plaintiffs’ application for a special permit, brought
to the Superior Court in the judicial district of Danbury
and transferred to the judicial district of Hartford, Land
Use Litigation Docket, where the court, Hon. Marshall
K. Berger, Jr., judge trial referee, granted the motion
to intervene as a defendant filed by Connecticut Coin-
ing, Inc.; thereafter, the matter was tried to the court,
Hon. Marshall K. Berger, Jr., judge trial referee; judg-
ment dismissing the appeal, from which the plaintiffs,
on the granting of certification, appealed to this
court. Affirmed.
Daniel E. Casagrande, for the appellants (plaintiffs).
Charles R. Andres, for the appellee (defendant).
Barbara M. Schellenberg, with whom, on the brief,
was Neil R. Marcus, for the appellee (intervening
defendant).
Opinion
PRESCOTT, J. The plaintiffs, B. Shawn McLoughlin
and Mono-Crete Step Co. of CT, LLC (Mono-Crete),
appeal from the judgment of the Superior Court dismiss-
ing their administrative appeal from the decision of the
defendant, the Planning and Zoning Commission of the
Town of Bethel (commission).1 In that decision, the
commission denied the plaintiffs’ application for a spe-
cial permit (application) to construct a crematory in
an industrial park zoning district (industrial zone). On
appeal, the plaintiffs claim that the court improperly
dismissed their appeal because (1) the commission’s
denial was not supported by substantial evidence in the
record and (2) the commission failed to consider their
application on its merits. We disagree and, accordingly,
affirm the judgment of the Superior Court.
The following undisputed facts and procedural his-
tory are relevant to this appeal.2 McLoughlin owns prop-
erty located at 12 Trowbridge Drive (property) in the
Clarke Business Park (park) in Bethel. The park is
located in one of the town’s two industrial zones. Mono-
Crete, of which McLoughlin is the sole member, oper-
ates a business on the property. Mono-Crete produces
precast concrete, which is used to make items such as
burial vaults.
Because Mono-Crete’s business was declining and
the number of cremations in the United States was
increasing, McLoughlin decided to seek approval to
operate a crematory on the property. In furtherance of
that goal, the plaintiffs proposed a text amendment to
the Bethel Zoning Regulations (regulations) that would
make the operation of a crematory a specially permitted
use within either of the two industrial zones in the town.
Prior to the commission’s voting on the proposed text
amendment, the plaintiffs’ counsel acknowledged, at
two separate meetings of the commission, that the com-
mission’s decision on whether to approve the proposed
text amendment and any future special permit applica-
tion seeking site plan approval were mutually exclusive
inquiries, each involving unique considerations.3
On July 22, 2014, the commission voted to approve
the text amendment (July, 2014 text amendment) by a
four to three vote. The notice of approval, dated August
5, 2014, stipulated that the commission would allow for
the specially permitted use of crematories conditioned
on the satisfaction of eight technical requirements.4 The
commission also noted that ‘‘the proposed text amend-
ment is . . . a reasonable request . . . in character
with the uses in the [i]ndustrial [zone].’’
After the commission approved the July, 2014 text
amendment, the plaintiffs submitted a special permit
application but withdrew it in January, 2015. The plain-
tiffs then resubmitted their application on February 25,
2015. On May 7, 2015, the plaintiffs submitted to the
commission an application to construct and operate a
crematory as required by General Statutes § 19a-320.5
Prior to the plaintiffs’ resubmission of their special
permit application, Connecticut Coining, Inc. (Connect-
icut Coining), on February 12, 2015, submitted an appli-
cation for a text amendment to the commission. The
proposed amendment would, in effect, repeal the July,
2014 text amendment and impose a one year morato-
rium on the commission’s entertaining applications for
and permitting the construction of crematories in the
town. At its May 12, 2015 meeting, the commission voted
to adopt this amendment (May, 2015 amendment) by
a four to three vote. The plaintiffs then appealed the
commission’s adoption of the May, 2015 amendment to
the Superior Court.
On June 17, 2015, Connecticut Coining filed an appli-
cation for a new text amendment that purportedly
sought to correct a procedural defect noted by the plain-
tiffs in their appeal of the May, 2015 text amendment
(revised repeal amendment). The commission, at its
September 22, 2015 meeting, voted to adopt the revised
repeal amendment by the same margin that it voted to
adopt the May, 2015 amendment.6
Despite its repeal of the July, 2014 text amendment,
the commission, nevertheless, continued to deliberate
on the plaintiffs’ application.7 After holding four public
hearings on the plaintiffs’ application, the commission,
at its September 8, 2015 deliberative session, voted to
deny it by a four to three vote. Three of the four mem-
bers who voted to approve the July, 2014 text amend-
ment also voted to approve the plaintiffs’ application.
Meanwhile, the three members who voted against the
July, 2014 text amendment also voted against the plain-
tiffs’ application. The chairperson of the commission,
however, voted to approve the July, 2014 text amend-
ment but voted to deny the plaintiffs’ application. After
voting to deny the plaintiffs’ application, the commis-
sion, by the same margin, later voted to deny their
application to construct and operate a crematory pursu-
ant to § 19a-320.8
At its September 22, 2015 meeting, the commission
presented its formal resolution of denial of the plaintiffs’
application (resolution of denial), in which it set forth
its reasoning for denying the plaintiffs’ application. The
commission generally found that ‘‘[t]he [plaintiffs]
ha[ve] not demonstrated that the proposed use in the
proposed location will not cause harmful health effects
to neighboring properties or their occupants and ha[ve]
not demonstrated that the use will not cause a loss in
value of property or economic development potential.
Specifically, the commission stated that the plaintiffs
failed to meet their burden of demonstrating that their
application satisfied the criteria for special permits set
forth in §§ 8.5.E.2,9 8.5.E.3,10 8.5.E.4,11 and 8.5.E.512 of
the regulations. The plaintiffs filed an appeal from that
decision with the Superior Court on October 13, 2015.
The Superior Court heard the plaintiffs’ appeal on
June 26, 2018. In a memorandum of decision dated
October 4, 2018, the court dismissed the plaintiffs’
appeal, concluding that there was substantial evidence
in the record to support the commission’s denial of the
application based on the criteria for special permits set
forth in §§ 8.5.E.3, 8.5.E.4, and 8.5.E.5 of the regu-
lations.13
On November 6, 2016, the plaintiffs filed a petition
for certification to appeal pursuant to General Statutes
§ 8-8 (o) and Practice Book § 81-1. This court granted
the plaintiffs’ petition on January 16, 2019. Additional
facts and procedural history will be set forth as nec-
essary.
Before addressing the plaintiffs’ claims on appeal, we
first set forth certain legal principles concerning special
permits. Our Supreme Court has observed that ‘‘[a] spe-
cial exception allows a property owner to use his prop-
erty in a manner expressly permitted by the local zoning
regulations. . . . Nevertheless, special exceptions,
although expressly permitted by local regulations, must
satisfy [certain conditions and] standards set forth in
the zoning regulations themselves as well as the condi-
tions necessary to protect the public health, safety,
convenience and property values [as required by Gen-
eral Statutes § 8-2]. . . . Moreover, we have noted that
the nature of special exceptions is such that their pre-
cise location and mode of operation must be regulated
because of the topography, traffic problems, neigh-
boring uses, etc., of the site. . . . Thus, we have
explained that the goal of an application for a special
exception is to seek permission to vary the use of a
particular piece of property from that for which it is
zoned, without offending the uses permitted as of right
in the particular zoning district.’’ (Emphasis omitted;
internal quotation marks omitted.) Municipal Funding,
LLC v. Zoning Board of Appeals, 270 Conn. 447, 453–54,
853 A.2d 511 (2004).
Moreover, ‘‘[§] 8-2 (a) authorizes municipal zoning
commissions to enact regulations providing that certain
. . . uses of land are permitted only after obtaining a
special permit . . . from a zoning commission . . . .
[That subsection] further provides that the obtaining
[of] a special permit or special exception . . . [is] sub-
ject to standards set forth in the regulations and to
conditions necessary to protect the public health,
safety, convenience and property values. Thus, in accor-
dance with § 8-2 (a), an applicant’s obtaining of a special
[permit] pursuant to a zoning regulation is subject to
a zoning commission’s consideration of these general
factors. . . . The special [permit] process is discretion-
ary, and the zoning board may base its denial of such
an application on general considerations such as public
health, safety and welfare, which are enumerated in
zoning regulations . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id., 454–55.
In addition, we are also mindful that our legislature
has vested in local governments the authority to deter-
mine whether to permit crematories in their towns. See
Urbanowicz v. Planning & Zoning Commission, 87
Conn. App. 277, 295, 865 A.2d 474 (2005). Indeed, this
court has stated that ‘‘[t]he legislative history of § 19a-
320 indicates that local authorities should decide the
location of crematories not sited within a cemetery’’
and that ‘‘[t]he location of a crematory is a matter for
local zoning approval.’’ Id., 295, 291 n.10. With these
principles concerning special permits and local govern-
ments’ decision-making authority with respect to cre-
matories in mind, we now turn to the plaintiffs’ claims
on appeal.
I
The plaintiffs first claim that the court improperly
concluded that there was substantial evidence in the
record to support the commission’s denial of their appli-
cation. We disagree with the plaintiffs and conclude
that there was substantial evidence to support the com-
mission’s denial based on the general standards set
forth in §§ 8.5.E.3 and 8.5.E.4 of the regulations.14
We begin by setting forth the legal principles concern-
ing the discretion that planning and zoning commissions
are afforded in determining whether to approve an
application for a special permit. Our Supreme Court
has stated: ‘‘Although it is true that the zoning commis-
sion does not have discretion to deny a special permit
[if] the proposal meets the standards, it does have dis-
cretion 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 dis-
cretion during the review of the proposed special excep-
tion, as it applies the regulations to the specific applica-
tion before it.’’ (Emphasis omitted.) Irwin v.
Planning & Zoning Commission, 244 Conn. 619, 628,
711 A.2d 675 (1998). In exercising its discretion, a com-
mission’s review of a special permit application ‘‘is
inherently fact-specific, requiring an examination of the
particular circumstances of the precise site for which
the special permit is sought and the characteristics of
the specific neighborhood in which the proposed [use]
would be [made].’’ Municipal Funding, LLC v. Zoning
Board of Appeals, supra, 270 Conn. 457; St. Joseph’s
High School, Inc. v. Planning & Zoning Commission,
176 Conn. App. 570, 600, 170 A.3d 73 (2017) (St.
Joseph’s).
Our standard for review of a commission’s decision
on an application for a special permit accounts for the
significant discretion that a commission is afforded in
making such a decision. Indeed, our Supreme Court
has stated: ‘‘In reviewing a decision of a zoning [com-
mission], a reviewing court is bound by the substantial
evidence rule, according to which . . . [c]onclusions
reached by [a zoning] commission must be upheld by
the trial court if they are reasonably supported by the
record. The credibility of the witnesses and the determi-
nation of issues of fact are matters solely within the
province of the [commission]. . . . The question is not
whether the trial court would have reached the same
conclusion . . . but whether the record before the
[commission] supports the decision reached. . . . If a
trial court finds that there is substantial evidence to
support a zoning [commission’s] findings, it cannot sub-
stitute its judgment for that of the [commission]. . . .
If there is conflicting evidence in support of the zoning
commission’s stated rationale, the reviewing court . . .
cannot substitute its judgment as to the weight of the
evidence for that of the commission. . . . The [com-
mission’s] decision must be sustained if an examination
of the record discloses evidence that supports any one
of the reasons given.’’ (Internal quotation marks omit-
ted.) Cambodian Buddhist Society of Connecticut, Inc.
v. Planning & Zoning Commission, 285 Conn. 381, 427,
941 A.2d 868 (2008). Moreover, ‘‘[s]ubstantial evidence
exists if the administrative record affords a substantial
basis of fact from which the fact in issue can be reason-
ably inferred.’’ (Internal quotation marks omitted.)
Sams v. Dept. of Environmental Protection, 308 Conn.
359, 374, 63 A.3d 953 (2013).
The court also has stated that the ‘‘substantial evi-
dence standard is highly deferential and permits less
judicial scrutiny than a clearly erroneous or weight of
the evidence standard of review.’’ (Internal quotation
marks omitted.) Id. In light of the significant amount
of deference that the substantial evidence standard
affords a commission, the court has described it as
‘‘an important limitation on the power of the courts to
overturn a decision of an administrative agency . . .
[that] provide[s] a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action.’’ (Internal quotation
marks omitted.) Property Group, Inc. v. Planning &
Zoning Commission, 226 Conn. 684, 697–98, 628 A.2d
1277 (1993).
In sum, ‘‘[o]n appeal, judicial review [of a commis-
sion’s denial of a special permit application] is confined
to the question of whether the commission abused its
discretion in finding that an applicant failed to demon-
strate compliance with the requirements of applicable
zoning regulations. When there is evidence in the record
to substantiate the commission’s determination, the
determination must stand.’’ (Emphasis added.) St.
Joseph’s, supra, 176 Conn. App. 606–607.
Turning to the present case, the commission, in deny-
ing the plaintiffs’ application, relied, in part, on the
application’s failure to comply with §§ 8.5.E.3 and
8.5.E.4 of the regulations. These provisions set forth
general standards that the commission must consider
when determining whether to approve a special permit
application. Specifically, § 8.5.E.3, which pertains to
‘‘[o]verall [n]eighborhood [c]ompatibility,’’ required the
commission to evaluate ‘‘[w]hether the proposed use
will have a detrimental effect on neighboring properties
and residences or the development of the district.’’ Sec-
tion § 8.5.E.4, which pertains to whether the location
proposed for the proposed specially permitted use is a
suitable location for that use, required the commission
to evaluate ‘‘[w]hether the location and size of the site,
the nature and intensity of the operations involved in
or conducted in connection with the use, and the loca-
tion of the site with respect to streets giving access to
it are such that the use will be in harmony with the
appropriate and orderly development in the district in
which it is located and shall promote the welfare of the
[t]own.’’ In sum, both provisions required the commis-
sion to consider whether the crematory, based on the
location at which it was proposed, would adversely
affect the development of the park and surrounding
area and promote the welfare of the town.15
We note that this court recently held that, ‘‘under
Connecticut law, a zoning commission may deny a spe-
cial permit application on the basis of general stan-
dards set forth in the zoning regulations, even when all
technical requirements of the regulations are met.’’
(Emphasis added.) St. Joseph’s, supra, 176 Conn. App.
594. We also note that it was the plaintiffs’ burden to
prove to the commission that their application satisfied
both of these provisions. See American Institute for
Neuro-Integrative Development, Inc. v. Town Plan &
Zoning Commission, 189 Conn. App. 332, 340, 207 A.3d
1053 (2019). Thus, if the commission determined that
the plaintiffs failed to meet their burden of proving
that their application complied with either § 8.5.E.3 or
§ 8.5.E.4, then it could deny their application. See Cam-
bodian Buddhist Society of Connecticut, Inc. v. Plan-
ning & Zoning Commission, supra, 285 Conn. 427
(‘‘[t]he [commission’s] decision must be sustained if
an examination of the record discloses evidence that
supports any one of the reasons given’’ (internal quota-
tion marks omitted)); St. Joseph’s, supra, 594 (‘‘commis-
sion may deny a special permit application on the basis
of general standards set forth in the zoning regulations’’
(emphasis added; internal quotation marks omitted)).
Because the commission did, in fact, deny their appli-
cation, in part, because it found that it failed to comply
with §§ 8.5.E.3 and 8.5.E.4 of the regulations, the plain-
tiffs, on appeal, had ‘‘the burden of proof to show that
[the commission’s decision] is not supported by the
record.’’ Unistar Properties, LLC v. Conservation &
Inland Wetlands Commission, 293 Conn. 93, 113, 977
A.2d 127 (2009); see also Verney v. Planning & Zoning
Board of Appeals, 151 Conn. 578, 580, 200 A.2d 714
(1964); St. Joseph’s, supra, 176 Conn. App. 602. To do
so, the plaintiffs were required to ‘‘do more than simply
show that another decision maker, such as the trial
court, might have reached a different conclusion.
Rather than asking the reviewing court to retry the case
de novo . . . the [plaintiffs were required to] establish
that substantial evidence does not exist in the record
as a whole to support the [commission’s] decision.’’
(Internal quotation marks omitted.) Unistar Properties,
LLC v. Conservation & Inland Wetlands Commission,
supra, 113.
Related to their claim that there was not substantial
evidence in the record to support the commission’s
denial of their application, the plaintiffs argue that, in
dismissing their appeal, the court improperly concluded
that it was bound by this court’s recent decision in St.
Joseph’s, supra, 176 Conn. App. 570. In support of this
argument, the plaintiffs assert that St. Joseph’s is distin-
guishable from the present case because ‘‘the evidence
supporting the special permit denial in that case was
fact based and grounded in the firsthand experience of
the objecting neighbors.’’ We disagree with the plain-
tiffs’ claim that the court improperly relied on our deci-
sion in St. Joseph’s.
In St. Joseph’s, this court addressed an apparent con-
flict in our state’s case law concerning whether general
standards in the zoning regulations alone could serve
as the basis for denying a special permit application.
Id., 587–94. In doing so, this court concluded that
‘‘[t]here . . . is no doubt that, under Connecticut law,
a zoning commission may deny a special permit applica-
tion on the basis of general standards set forth in the
zoning regulations, even when all technical require-
ments of the regulations are met.’’ Id., 594. The plaintiffs,
at oral argument before this court, stated that they do
not dispute this conclusion.
Contrary to the plaintiffs’ claim, the Superior Court’s
reliance on St. Joseph’s was not based on the type of
testimony that was offered in that case. Rather, in light
of what this court said in St. Joseph’s about general
standards predicating a commission’s denial of a special
permit application, the court concluded that it was com-
pelled to uphold the commission’s denial of the plain-
tiffs’ application because the commission ‘‘based [its
decision] upon general standards concerning the
nature of the use, the welfare of the town, and the
harmony with other uses and the orderly development
in the district.’’ (Emphasis added.) Thus, we conclude
that the court properly relied on this court’s decision
in St. Joseph’s.
In determining whether there was substantial evi-
dence in the record from which the commission reason-
ably could have concluded that the plaintiffs’ applica-
tion failed to satisfy §§ 8.5.E.3 and 8.5.E.4 of the
regulations, the following additional facts and proce-
dural history are relevant. Prior to the commission’s
adoption of the July, 2014 text amendment, the town’s
Economic Development Commission (EDC) provided
testimony to the commission in which it voiced its con-
cerns about allowing a crematory to operate in the
park. In particular, the EDC stated that, a crematory,
if allowed to operate in the park, would have an adverse
economic impact on the park and the town.
After the commission adopted the July, 2014 text
amendment, the EDC then offered additional testimony
that buttressed these concerns. Indeed, in an April 13,
2015 letter to the commission, the EDC restated its
‘‘concerns about the negative impact the [proposed cre-
matory] may have on existing properties, businesses,
future ownership and the expansion of [the] [p]ark’’
and noted that ‘‘[t]hese were not only the concerns of
the EDC, but also business and property owners within
[the] [p]ark.’’ In support of its concerns, the EDC
pointed out that a person who owned property in the
town had decided to sell his properties after the com-
mission adopted the July, 2014 text amendment. Indeed,
the EDC noted that its ‘‘concerns [about the crematory]
recently became a reality when a property owner in
[the] [p]ark . . . who submitted letters and spoke at
the public hearings against this use in the park, put all
of his seven Bethel properties (both commercial and
residential) on the market. His decision, as he stated
to the [d]irector of the Office of Economic Develop-
ment, was based solely on the [July, 2014 text] amend-
ment approval. These properties represent over $41,000
in tax revenue and a loss of over $27,000 a year in
potential tax revenue for the expansion he was planning
. . . .’’ (Emphasis added.)
With respect to this property owner’s decision to sell
his properties, the EDC warned that ‘‘this is the first
of many potential negative impacts that [allowing a
crematory in the park] may have on the [industrial]
zone.’’ Moreover, after the July, 2014 text amendment
was adopted, another person who owned a business in
the park similarly decided to delay making $100,000
worth of improvements to his property and later
decided to put his property up for sale.
The EDC then submitted an additional letter on July
13, 2015, in opposition to the plaintiffs’ crematory. In
light of property owners already putting their properties
up for sale after the commission adopted the July, 2014
text amendment, the EDC stated that allowing the plain-
tiffs to operate a crematory at the proposed location
in the park ‘‘would negatively impact our ability to sell
the additional lots [nearby] for a fair price.’’
In light of this testimony, the commission, with
respect to § 8.5.E.3 of the regulations, found that ‘‘the
applicant [failed to demonstrate] that the proposed cre-
matory use [would] not have a detrimental effect on
neighboring properties and residences and the develop-
ment of the [zoning] district.’’ Moreover, the commis-
sion found that the application failed to satisfy § 8.5.E.4
because the plaintiffs failed to demonstrate ‘‘that the
proposed location [was] suitable for the crematory
use.’’
Based on this testimony alone, there was substantial
evidence from which the commission reasonably could
have concluded that, by allowing the plaintiffs to oper-
ate a crematory at the location they proposed, the devel-
opment of the park and surrounding area as well as the
welfare of the town would be adversely affected. In
particular, there was substantial evidence from which
the commission reasonably could have concluded that,
by approving the plaintiffs’ application, businesses and
individuals would be less inclined to either remain or
to purchase property in and around the park. For exam-
ple, the EDC, in its testimony, pointed to a property
owner who already had sold his property after the
commission adopted the July, 2014 text amendment.
Based on this testimony and the testimony of another
property owner who sold his property in the park after
the July, 2004 text amendment was adopted, there was
substantial evidence from which the commission rea-
sonably could have concluded that allowing cremato-
ries in the park would make property in and around the
park less attractive to current and prospective property
owners. As a result of this, the town could face difficulty
retaining current area businesses and residents and
attracting new ones, which would adversely affect the
development of the park and surrounding area, as well
as the overall welfare of the town.
Moreover, there was substantial evidence from which
the commission reasonably could have concluded that
approving the plaintiffs’ application would depress
property values in the park and the surrounding area.
First, the EDC noted that it would have difficulty selling
new, nearby lots at a fair price if the crematory were
allowed to operate at the location proposed in the appli-
cation. In addition, the commission had evidence that
two nearby properties had sold after the July, 2014
text amendment was adopted, from which it reasonably
could have inferred that property in this area was now
less desirable and, as a result, property values would
decline. In light of property being less valuable in the
park and surrounding area, we conclude that there was
substantial evidence from which the commission rea-
sonably could have determined that allowing a crema-
tory to operate at the location proposed by the plaintiffs
would negatively impact the development of the park
and surrounding area as well as the overall welfare of
the town.16
Furthermore, even the plaintiffs’ counsel admitted
to the commission that the location that the plaintiffs
proposed for the crematory was not ideal. Indeed, at
an April 14, 2015 meeting before the commission, the
plaintiffs’ counsel, in response to Connecticut Coining’s
counsel asking why the plaintiffs did not place the cre-
matory on a different part of the property, stated that
the plaintiffs would ‘‘love to. . . . This would make
this a much simpler application for [them]. As you noted
in the site walk, there’s a huge hill here. This would be
natural screening from everybody. Really, you would
have no idea that it was there. Obviously, the 500 foot
rule is causing us to not be able to do that.17 In order
to do that, we would have to either change the 500 foot
rule in [the statute], which I’m working on but haven’t
succeeded in doing yet, or the [c]ommission would have
to rezone this property . . . which we may come and
ask you to do in the future but, for now, we are just
proceeding on the assumption that we have to comply
with the 500 foot rule.’’ (Footnote added.)
In addition, at a July 15, 2015 meeting of the commis-
sion, the plaintiffs’ counsel stated that, ‘‘[i]n terms of
the location on the site, [the plaintiffs’] preference, and
[they have] expressed this to you all along, would be
to have this down in the existing building or in a small
addition to the existing building. [The plaintiffs] think
it provides much better screening from the . . . park
and is a better location.’’
Based on the testimony before it, there was substan-
tial evidence from which the commission reasonably
could have determined that the plaintiffs failed to meet
their burden of demonstrating that their application
satisfied §§ 8.5.E.3 and 8.5.E.4 of the regulations. Thus,
we conclude that the commission’s decision to deny
their application was not improper.18
II
Even though there was substantial evidence from
which the commission reasonably could have con-
cluded that their special permit application did not sat-
isfy §§ 8.5.E.3 and 8.5.E.4 of the regulations, the plain-
tiffs nevertheless claim that the commission improperly
failed to ‘‘consider [their] . . . application on its merits
. . . .’’ The plaintiffs argue that, instead, the commis-
sion improperly denied their application on the basis
of ‘‘its predisposition to keep a crematory out of [the
park] regardless of whether the . . . application com-
plied with the regulations’’ and ‘‘its conviction that it
had made a legislative misjudgment in adopting the
[July, 2014] text amendment,’’ which allowed for spe-
cially permitted uses of crematories in the town’s two
industrial zones.
In addressing this claim, we first set forth the relevant
legal principles concerning an applicant’s claim that a
commission denied his or her special permit application
on the basis of a predisposition or predetermination
that it held rather than on the application’s merits. In
addressing this claim, we are mindful that ‘‘[t]he law
does not require that members of zoning commissions
must have no opinion concerning the proper develop-
ment of their communities. It would be strange, indeed,
if this were true. . . . The human mind . . . is no
blank piece of paper. . . . Interests, points of view,
preferences, are the essence of living. . . . An open
mind, in the sense of a mind containing no preconcep-
tions whatever, would be a mind incapable of learning
anything, [and] would be that of an utterly emotionless
human being . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Cioffoletti v. Planning & Zoning
Commission, 209 Conn. 544, 555, 552 A.2d 796 (1989).
If, however, ‘‘the commission acted with predisposition
and predetermination, the commission’s actions are
capricious, unreasonable and illegal, and cannot be
allowed to stand.’’ Marmah, Inc. v. Greenwich, 176
Conn. 116, 123–24, 405 A.2d 63 (1978).
In addressing this claim, we also are mindful that a
claim of predisposition or predetermination is difficult
to prove. See R. Fuller, 9B Connecticut Practice Series:
Land Use Law and Practice (4th Ed. 2015) § 47:2, p.
35. Indeed, ‘‘[w]e presume that administrative [agency]
members acting in an adjudicative capacity are not
biased.’’ Simko v. Ervin, 234 Conn. 498, 508, 661 A.2d
1018 (1995). To overcome this presumption and to
prove a claim of predetermination, a claimant has the
burden of proving that ‘‘the commissioners had made
up their minds that they were going to disapprove the
plaintiffs’ plan regardless of any evidence or argument
presented at the public hearing.’’ Daviau v. Planning
Commission, 174 Conn. 354, 358, 387 A.2d 562 (1978);
see also Cioffoletti v. Planning & Zoning Commission,
supra, 209 Conn. 555 (burden of proving predetermina-
tion is on party advancing such claim). To satisfy this
burden, a party claiming that a zoning commission
denied his or her application on the basis of a predispo-
sition may, pursuant to § 8-8 (k), move to supplement
the administrative record in order to proffer evidence
to the trial court in support of this claim. See Marmah,
Inc. v. Greenwich, supra, 176 Conn. 121.
Although the plaintiffs raised a claim of predetermi-
nation in their Superior Court brief, they did not move
to supplement the record to proffer evidence in support
of their predetermination claim. Indeed, the only evi-
dence in the record on which the plaintiffs rely relates
to the timing of the commission’s denial of their applica-
tion, which closely followed its decision to repeal the
July, 2014 text amendment allowing specially permitted
uses of crematories in the town’s two industrial zones.
Specifically, the plaintiffs direct us to remarks made
by certain commissioners during deliberative sessions
of the commission,19 as well as ‘‘[t]he interplay between
the proceedings on the . . . application and the pro-
ceedings to delete the [July, 2014 text amendment] on
which [the] application was predicated,’’ ‘‘the weakness
of the commission’s reasons for denying the . . . appli-
cation,’’ and ‘‘the blatant inconsistency between its find-
ings in July, 2014, that a crematory on the property is
in character with the uses in the [industrial] zone and
its opposite finding a little over a year later.’’ Moreover,
the plaintiffs direct our attention to our Supreme
Court’s decision in Marmah, Inc. v. Greenwich, supra,
176 Conn. 116, in support of their predetermination
claim, even though they acknowledged in their reply
brief to the Superior Court that Marmah, Inc., is distin-
guishable from the present case ‘‘in some respects.’’
After describing the plaintiffs’ arguments in support
of their predetermination claim in its memorandum of
decision, the court implicitly concluded that the com-
mission did not deny their application on the basis of
a predisposition that it held.20 We disagree with the
plaintiffs that the commission predetermined the merits
of their application.21
We first address the plaintiffs’ reliance on our
Supreme Court’s decision in Marmah, Inc., in which
it concluded that the Greenwich Planning and Zoning
Commission improperly had enacted a ‘‘zoning amend-
ment . . . primarily for the purpose of [denying the
plaintiff’s site plan application, thus] preventing the
plaintiff from going forward with its contemplated
building project.’’ Marmah, Inc. v. Greenwich, supra,
176 Conn. 123. In that case, our Supreme Court
described ‘‘[t]he commission’s overt consideration of
the site plan [as] casual and perfunctory. The commis-
sion appeared to be favoring opponents of the applica-
tion throughout the public meeting at which it was
discussed. Representatives of the [plaintiff] were not
permitted to question the representative capacity, or
the technical credentials, of those who spoke or wrote
in opposition to the application. There was no expert
testimony about traffic, architectural design or building
design, other than the approvals of [the plaintiff’s] appli-
cation by the defendant town’s traffic department,
architectural review board, and building department.
Nonetheless, the commission voted to disapprove the
site plan on the grounds of increased traffic and unsatis-
factory parking layout, as well as the absence of a
request for new facilities by the postal authorities.’’
(Emphasis omitted.) Id., 118. In support of its conclu-
sion that the ‘‘zoning amendment [at issue] was enacted
primarily for the purpose of preventing the plaintiff
from going forward with its contemplated building proj-
ect’’; id., 123; the court observed that the commission
did not provide the plaintiff with a fair hearing on his
site plan application and that none of the reasons that
the commission provided for denying his site plan appli-
cation were legitimate. Id., 118–19, 123; see also 9B R.
Fuller, supra, § 47.2, p. 37.
Unlike Marmah, Inc., in which deliberation over the
plaintiff’s site plan application was afforded one public
hearing before being denied; Marmah, Inc. v. Green-
wich, supra, 176 Conn. 122–23; the plaintiffs’ application
in the present case was afforded attention at four public
hearings. Moreover, at these hearings and during its
deliberative sessions, the commission entertained an
immense amount of evidence and testimony.
In addition, contrary to the plaintiffs’ assertion that
the commission’s reasons for denying their application
were insufficient, the commission, in fact, authored a
detailed resolution of denial in which it stated that it
denied the plaintiffs’ application, in part, because it
did not satisfy §§ 8.5.E.3 and 8.5.E.4 of the regulations.
Indeed, in part I of this opinion, we concluded that the
commission’s denial of the plaintiffs’ application on
the basis of these provisions in the regulations was
supported by substantial evidence.
Furthermore, to the extent that the plaintiffs chal-
lenge the commission’s authority to repeal a text
amendment despite contrary findings that it made when
it adopted the amendment, this argument is meritless.
Indeed, when a commission adopts or repeals a text
amendment to a town’s zoning regulations, it acts in
its legislative capacity, and, when acting in this capacity,
it is afforded immensely broad discretion. See Morn-
ingside Assn. v. Planning & Zoning Board, 162 Conn.
154, 157–58, 292 A.2d 893 (1972). When acting in a
legislative capacity, a commission ‘‘must be relatively
free to amend or modify its regulations whenever time
and experience have demonstrated the need for a revi-
sion. [A commission], acting in a legislative capacity,
[is], therefore, not bound by the general rule which
would prohibit it from reversing an earlier decision
without evidence of a change in conditions.’’ (Citations
omitted.) Id., 158.
Our Supreme Court has stated on many occasions
that ‘‘courts cannot substitute their judgment for the
wide and liberal discretion vested in local zoning
authorities when they have acted within their pre-
scribed legislative powers. . . . The courts allow zon-
ing authorities this discretion in determining the public
need and the means of meeting it, because the local
authority lives close to the circumstances and condi-
tions which create the problem and shape the solution.
. . . Courts, therefore, must not disturb the decision
of a zoning commission unless the party aggrieved by
that decision establishes that the commission acted
arbitrarily or illegally.’’ (Citations omitted; internal quo-
tation marks omitted.) First Hartford Realty Corp. v.
Planning & Zoning Commission, 165 Conn. 533, 540–
41, 338 A.2d 490 (1973).
In arriving at our conclusion that the commission’s
denial of the plaintiffs’ application was not improper,
we take this occasion to underscore the Superior
Court’s cogent observation that ‘‘[t]his appeal under-
scores the inevitable tension between a commission’s
legislative determination leading to the presumptive
compatibility of the use . . . and a subsequent admin-
istrative determination denying a special permit based
upon the use adversely [affecting] the district. . . . The
analysis is complicated in the current case by the stigma
of the proposed use because it is a cremator[y].’’ (Cita-
tions omitted.) Indeed, a person seeking to operate a
crematory on his or her property could, in response to
a commission’s finding that operating a crematory is
‘‘in character’’ with the uses in a zone in its legislative
capacity, expend significant resources preparing a spe-
cial permit application only for the commission subse-
quently to disallow the crematory when acting in its
administrative capacity.
The question of regulatory authority for the siting of
crematories, however, is an issue for our legislature to
resolve. At the present time, our legislature has chosen
to vest significant authority in local governments to
determine whether to allow crematories in their munici-
palities. See General Statutes § 19a-320; Urbanowicz v.
Planning & Zoning Commission, supra, 87 Conn. App.
291 n.10, 295. If our legislature determines, as a matter
of policy, that there is a significant need for crematories
statewide and the local zoning authorities are unduly
hampering the ability to meet new demand, then, by
statute, it can circumscribe the authority of the local
governments and thereby not require those who wish
to operate a crematory to seek approval from local
planning and zoning commissions. Such a policy deter-
mination, however, is ill-suited for resolution in an
appeal from a commission’s denial of a special per-
mit application.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On March 9, 2016, Connecticut Coining, Inc., a business located near
the proposed crematory, moved to intervene as a defendant in the plaintiffs’
appeal pursuant to Practice Book § 9-6 and General Statutes § 8-8 (p). The
trial court granted this motion on September 17, 2018. Accordingly, Connecti-
cut Coining, Inc., is a party to this appeal.
2
At the hearing before the court, the parties stated that they were in
agreement as to the facts underlying this appeal.
3
At the April 22, 2014 meeting of the commission, the plaintiffs’ counsel
stated that, when considering the proposed text amendment, the commission
does not ‘‘have the actual proposal in front of [it]; [it doesn’t] have the
building that’s going to be built; [it] can’t look at traffic generation; [it] can’t
look at what screening [the plaintiffs] would be proposing; all of this can
be looked at in detail on a specific site plan special permit application
including the exact make model manufacturer of the equipment that we’re
proposing to use and what the actual in emissions of that would be.’’ (Empha-
sis added.) At that same meeting, the plaintiffs’ counsel noted that the
commission’s decision whether to approve the text amendment ‘‘is step one,
[and] if the commission sees fit to approve this text amendment, [then]
we still [have] some hurdles ahead of us; we [have to] find the right place
on our property; we [must] have a good design; [we have] to convince you
that the units that we are going to install are going to be satisfactory to
meet the air pollution concerns because they are concerns. Step one is why
we’re here that’s the text amendment and we’re hopeful that you will receive
this favorably.’’ (Emphasis added.)
At the May 27, 2014 meeting of the commission, the plaintiffs’ counsel
stated: ‘‘At the onset I just want to make clear again, which you all know
but just to reiterate, that we are applying for a text amendment. There will
be, if you approve this, another process where we have to deal with the
specific site in question, site specific issues such as the operation traffic—
visual impairment, issues like that. We are talking simply about the text
amendment which would apply in either business park. . . . As I noted,
we have to come to you for a [s]pecial [p]ermit, even if you approve this
text amendment. I think that a lot of the operational issues that people are
concerned with can be dealt with in that process. Because you’ll be dealing
with a specific property, you’ll know what it’s going to look like, where it’s
going to go, how it’s going to work.’’ (Emphasis added.)
4
The technical requirements for crematories set forth in § 4.3.C.10a of
the Bethel Zoning Regulations are as follows: ‘‘Crematory facility for the
disposal by incineration of the bodies of the dead [shall be permitted],
provided:
‘‘a. No such crematory facility shall be located within two (2) miles of
any other crematory facility;
‘‘b. Any discharge point from such crematory facility, such as a chimney
or smokestack, shall be located at least 1,000 feet from any residence, and
shall be screened from view in all directions;
‘‘c. Any [s]tructure containing a retort shall be located at least five hundred
feet from any land zoned for residential purposes not owned by the owner
of the crematory;
‘‘d. No more than two (2) retorts shall be installed in any such crema-
tory facility;
‘‘e. A dedicated loading space shall be provided which is screened from
view from all roadways adjoining the property with a vegetative screen;
‘‘f. The crematory facility shall be located indoors within structures, includ-
ing any viewing areas;
‘‘g. No funerals or memorial services may be conducted on the premises
unless a special permit for a funeral home is issued pursuant to Section 4.3
(C) (10). Use of a viewing area to view the process of incineration shall not
constitute a funeral or memorial service; and
‘‘h. The [commission] may, but need not, consider an application for
approval of the location of a crematory facility pursuant to [General Statutes]
§ 19a-320 (b) simultaneously with the required application for special
permit.’’
5
General Statutes § 19a-320 provides in relevant part: ‘‘(a) Any resident
of this state, or any corporation formed under the law of this state, may erect,
maintain and conduct a crematory in this state and provide the necessary
appliances and facilities for the disposal by incineration of the bodies of
the dead, in accordance with the provisions of this section. The location of
such crematory . . . shall be within the confines of a plot of land approved
for the location of a crematory by the selectmen of any town, the mayor
and council or board of aldermen of any city and the warden and burgesses
of any borough; provided, in any town, city or borough having a zoning
commission, such commission shall have the authority to grant such
approval. . . .
‘‘(b) Application for such approval shall be made in writing to the local
authority specified in subsection (a) of this section . . . .’’
6
The plaintiffs also appealed the commission’s decision to adopt the
revised repeal amendment. The parties agreed to delay the court’s adjudica-
tion of the plaintiffs’ appeals from the May, 2015 amendment and the revised
repeal amendment pending the outcome of the present appeal.
7
Because the plaintiffs’ application was submitted to the commission
before the commission repealed the July, 2014 text amendment, the commis-
sion was required to consider the application on the basis of the requirements
set forth in the July, 2014 text amendment. See General Statutes § 8-2h
(a). Section 8-2h (a) provides that ‘‘[a]n application filed with a zoning
commission, planning and zoning commission, zoning board of appeals or
agency exercising zoning authority of a town, city or borough which is in
conformance with the applicable zoning regulations as of the time of filing
shall not be required to comply with, nor shall it be disapproved for the
reason that it does not comply with, any change in the zoning regulations
or the boundaries of zoning districts of such town, city or borough taking
effect after the filing of such application.’’
8
In their appellate brief, the plaintiffs note that ‘‘[t]he commission consid-
ered the [§ 19a-320] application together with the special permit and site
plan applications.’’ They also assert that, ‘‘if they are entitled to a special
permit, the § 19a-320 application should be approved as well.’’ Connecticut
Coining contests this assertion in its appellate brief. Because we affirm the
trial court’s judgment with respect to the special permit application, we
need not address the § 19a-320 application.
9
Section 8.5.E.2 of the Bethel Zoning Regulations, which pertains to
‘‘[e]nvironmental [p]rotection and [c]onservation,’’ requires the commission
to evaluate ‘‘[w]hether appropriate consideration has been given to the
protection, preservation, and/or enhancement of natural, scenic, historic,
and unique resources including, where appropriate, the use of conservation
restrictions to protect and permanently preserve natural, scenic, historic, or
unique features which enhance the character and environment of the area.’’
10
Section 8.5.E.3 of the Bethel Zoning Regulations, which pertains to
‘‘[o]verall [n]eighborhood [c]ompatibility,’’ requires the commission to evalu-
ate ‘‘[w]hether the proposed use will have a detrimental effect on neighboring
properties and residences or the development of the district.’’
11
Section 8.5.E.4 of the Bethel Zoning Regulations, which pertains to
whether the location proposed for the specially permitted use is a ‘‘[s]uitable
[l]ocation [f]or [that] [u]se,’’ requires the commission to evaluate ‘‘[w]hether
the location and size of the site, the nature and intensity of the operations
involved in or conducted in connection with the use, and the location of
the site with respect to streets giving access to it are such that the use will
be in harmony with the appropriate and orderly development in the district
in which it is located and shall promote the welfare of the [t]own.’’
12
Section 8.5.E.5 of the Bethel Zoning Regulations, which pertains to
‘‘[a]ppropriate [i]mprovements,’’ requires the commission to evaluate in rele-
vant part: ‘‘a. Whether the design elements of the proposed development
will be attractive and suitable in relation to the site characteristics, the style
of other buildings in the immediate area, and the existing and probable
future character of the neighborhood in which the use is located.
‘‘b. Whether the location, nature and height of buildings, walls, and fences,
planned activities and the nature and extent of landscaping on the site
will be such that the use shall not hinder or discourage the appropriate
development and use of adjacent land and buildings or impair the value
thereof.’’
13
The court noted, however, that the evidence in support of the commis-
sion’s denial based on § 8.5.E.2 of the regulations was not substantial. On
appeal, the parties do not dispute the trial court’s determination that there
was not substantial evidence to support the commission’s determination
that the plaintiffs’ application failed to satisfy § 8.5.E.2. Thus, we do not
address this issue in this opinion. See Cambodian Buddhist Society of
Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427,
941 A.2d 868 (2008) (‘‘[t]he [commission’s] decision must be sustained if an
examination of the record discloses evidence that supports any one of the
reasons given’’ (internal quotation marks omitted)).
14
The plaintiffs also claim that the court improperly concluded that there
was substantial evidence to support the commission’s denial of their applica-
tion based on § 8.5.E.5 of the regulations. We need not reach this issue,
however, because we conclude that there is substantial evidence in the
record to support the denial of the application based on §§ 8.5.E.3 and
8.5.E.4 of regulations. See Cambodian Buddhist Society of Connecticut,
Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868
(2008) (‘‘[t]he [commission’s] decision must be sustained if an examination
of the record discloses evidence that supports any one of the reasons given’’).
15
With respect to interpreting zoning regulations, our Supreme Court
recently stated: ‘‘Because the interpretation of the regulations presents a
question of law, our review is plenary. . . . [Z]oning regulations are local
legislative enactments . . . and, therefore, their interpretation is governed
by the same principles that apply to the construction of statutes. . . . More-
over, regulations must be interpreted in accordance with the principle that a
reasonable and rational result was intended . . . . The process of statutory
interpretation involves the determination of the meaning of the statutory
language [or . . . the relevant zoning regulation] as applied to the facts of
the case, including the question of whether the language does so apply.’’
(Internal quotation marks omitted.) Lime Rock Park, LLC v. Planning &
Zoning Commission, Conn. , , A.3d , (2020).
16
With respect to property values in the surrounding area, the commission
discredited ‘‘an opinion by a real estate agent that there would be negligible
effects on the value of property in the [industrial] [z]one and nearby residen-
tial properties’’ and noted that ‘‘[t]he [plaintiffs] did not submit any studies
from an appraiser on this issue.’’ We note that determining ‘‘[t]he credibility
of the witnesses . . . [is] solely within the province of the [commission].’’
(Internal quotation marks omitted.) Cambodian Buddhist Society of Con-
necticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 427.
17
General Statutes § 8-2n provides in relevant part: ‘‘The zoning regulations
adopted under section 8-2 or any special act shall not authorize the location
of a crematory within five hundred feet of any residential structure or land
zoned for residential purposes not owned by the owner of the crematory.
. . .’’
18
The plaintiffs also claim that the commission deprived them of their
rights to due process and fundamental fairness because it ‘‘reli[ed] on the
purported visibility of the crematory stacks’’ in denying their application,
even though it declined the plaintiffs’ invitation to ‘‘shoot a sight line mea-
surement in all directions to determine if the stacks actually would be
visible to the neighboring property owners, if the commission felt this was
necessary.’’ (Emphasis added.) We need not address this claim, however,
because we conclude, for reasons other than the purported visibility of the
crematory stacks, that there was substantial evidence in the record to sup-
port the commission’s denial of the plaintiffs’ application. See Cambodian
Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission,
supra, 285 Conn. 427 (‘‘[t]he [commission’s] decision must be sustained if
an examination of the record discloses evidence that supports any one of
the reasons given’’ (internal quotation marks omitted)).
19
In support of this argument, the plaintiffs generally direct us to ‘‘the
remarks of the chair[person] during the deliberative sessions on the . . .
application held on August 11, 2015 and September 8, 2015.’’ Specifically,
they direct us to the statements made by the chairperson and some commis-
sioners during the September 8, 2015 session. During this session, the chair-
person stated: ‘‘I think what we’ve been hearing—this most recent go around
with this application is that not only are the neighbors concerned but the
businesses in the [p]ark are concerned. And, we’ve had a lot information
pro and con but, it’s very difficult to separate that which is fact from that
which is not because pretty much you could find anything on the Internet
to support what your beliefs might be. And, is it going to be compatible
with other businesses in the park? I don’t believe it is—based on the feedback
that you’ve had from businesses, who say they may leave the park. And,
based on [a business owner’s] purchase of his building at 1.2 million dollars,
unfortunately not being told about the application, and who’s made the
decision that he is going to sell his business—his building. That’s a great
concern and I think a number of them have pulled back on expansions and
we have to—I feel that we have to take a look and say, ‘is it worth the risk
to lose businesses in the park?’ And, the number that said they may leave
because for me that’s a huge economic drawback not only to Bethel but to
the [p]ark and for that reason, I don’t think it works and is compatible.’’
Following the chairperson’s remarks, one commissioner opined that, by
approving the application, the commission ‘‘would be doing the citizens of
Bethel a disservice [by] tak[ing] [the] risk’’ of ‘‘possible adverse’’ impacts
to business and residents caused by a crematory being located at the pro-
posed site within the park. Another commissioner then pointed out that
‘‘there was just an abundance of material [presented to the commission
when it considered the [application] and frankly none of [it] was available—
I’m sure it was available but none of it was in front of us when we originally
gave a decision to pass the [July, 2014] text amendment. None of the informa-
tion was, (indiscernible), we did the best job that we could based on the
information that we had at that time but, now I believe it’s different, it’s
changed.’’ Following this statement, another commissioner acknowledged
that ‘‘we all were more or less in the same corners we are now,’’ referencing
the fact that, with the exception of the chairperson, the commissioners who
voted to approve the July, 2014 text amendment also voted to approve the
application, and the three commissioners who voted against the July, 2014
text amendment supported denial of the application.
20
To the extent the trial court’s decision on this claim was ambiguous,
the plaintiffs failed to move for an articulation pursuant to Practice Book
§ 66-5 to clarify its conclusion. This court has stated: ‘‘[I]t is axiomatic that
the appellant must provide this court with an adequate record for review.
. . . It is well established that [a]n articulation is appropriate where the
trial court’s decision contains some ambiguity or deficiency reasonably
susceptible of clarification. . . . [P]roper utilization of the motion for articu-
lation serves to dispel any . . . ambiguity by clarifying the factual and legal
basis upon which the trial court rendered its decision, thereby sharpening
the issues on appeal.’’ (Citations omitted; internal quotation marks omitted.)
Breen v. Judge, 124 Conn. App. 147, 161, 4 A.3d 326 (2010).
21
Because the plaintiffs failed to supplement the record with evidence
supporting their claim of predetermination and the Superior Court did not
make any findings with respect to this claim, our consideration of this claim
on appeal is limited to the arguments and evidence that they presented to
the Superior Court.