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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 submitted 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amendment filed by the intervening defendant that repealed the prior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 individuals 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 predisposition 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. Greenwich (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 Coining, Inc.; thereafter, the matter was tried to the court,

Hon. Marshall K. Berger, Jr., judge trial referee; judgment 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 dismissing 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 special 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 history are relevant to this appeal.2 McLoughlin owns property 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. MonoCrete, of which McLoughlin is the sole member, operates 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 commission’s decision on whether to approve the proposed

text amendment and any future special permit application 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 amendment 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 plaintiffs 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. (Connecticut Coining), on February 12, 2015, submitted an application for a text amendment to the commission. The

proposed amendment would, in effect, repeal the July,

2014 text amendment and impose a one year moratorium 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 application for a new text amendment that purportedly

sought to correct a procedural defect noted by the plaintiffs 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 members who voted to approve the July, 2014 text amendment also voted to approve the plaintiffs’ application.

Meanwhile, the three members who voted against the

July, 2014 text amendment also voted against the plaintiffs’ application. The chairperson of the commission,

however, voted to approve the July, 2014 text amendment but voted to deny the plaintiffs’ application. After

voting to deny the plaintiffs’ application, the commission, by the same margin, later voted to deny their

application to construct and operate a crematory pursuant 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 regulations.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 necessary.

Before addressing the plaintiffs’ claims on appeal, we

first set forth certain legal principles concerning special

permits. Our Supreme Court has observed that ‘‘[a] special exception allows a property owner to use his property 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 conditions necessary to protect the public health, safety,

convenience and property values [as required by General Statutes § 8-2]. . . . Moreover, we have noted that

the nature of special exceptions is such that their precise location and mode of operation must be regulated

because of the topography, traffic problems, neighboring 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] subject to standards set forth in the regulations and to

conditions necessary to protect the public health,

safety, convenience and property values. Thus, in accordance 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 discretionary, 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 determine 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 § 19a320 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 governments’ decision-making authority with respect to crematories 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 application. We disagree with the plaintiffs and conclude

that there was substantial evidence to support the commission’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 concerning 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 commission does not have discretion to deny a special permit

[if] the proposal meets the standards, it does have discretion to determine whether the proposal meets the

standards set forth in the regulations. If, during the

exercise of its discretion, the zoning commission

decides that all of the standards enumerated in the

special permit regulations are met, then it can no longer

deny the application. The converse is, however, equally

true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it.’’ (Emphasis omitted.) Irwin v.

Planning & Zoning Commission, 244 Conn. 619, 628,

711 A.2d 675 (1998). In exercising its discretion, a commission’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 [commission], 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 determination 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 substitute 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 [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.) 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 reasonably 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 evidence 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 evidence 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 commission’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 demonstrate 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 denying 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.’’ Section § 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 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.’’ In sum, both provisions required the commission 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 special permit application on the basis of general standards 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 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)); St. Joseph’s, supra, 594 (‘‘commission 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 application, in part, because it found that it failed to comply

with §§ 8.5.E.3 and 8.5.E.4 of the regulations, the plaintiffs, 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 distinguishable 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 plaintiffs’ claim that the court improperly relied on our decision in St. Joseph’s.

In St. Joseph’s, this court addressed an apparent conflict 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 application on the basis of general standards set forth in the

zoning regulations, even when all technical requirements 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 compelled to uphold the commission’s denial of the plaintiffs’ 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 reasonably could have concluded that the plaintiffs’ application failed to satisfy §§ 8.5.E.3 and 8.5.E.4 of the

regulations, the following additional facts and procedural 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 concerns 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 crematory] 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 commission 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 Development, was based solely on the [July, 2014 text] amendment 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 plaintiffs 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 crematory use [would] not have a detrimental effect on

neighboring properties and residences and the development of the [zoning] district.’’ Moreover, the commission 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 operate a crematory at the location they proposed, the development 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 example, 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 reasonably could have concluded that allowing crematories 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 application. 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 reasonably could have determined that allowing a crematory 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 crematory 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 commission, 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 substantial 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 concluded that their special permit application did not satisfy §§ 8.5.E.3 and 8.5.E.4 of the regulations, the plaintiffs nevertheless claim that the commission improperly

failed to ‘‘consider [their] . . . application on its merits

. . . .’’ The plaintiffs argue that, instead, the commission improperly denied their application on the basis

of ‘‘its predisposition to keep a crematory out of [the

park] regardless of whether the . . . application complied with the regulations’’ and ‘‘its conviction that it

had made a legislative misjudgment in adopting the

[July, 2014] text amendment,’’ which allowed for specially 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 development 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 preconceptions whatever, would be a mind incapable of learning

anything, [and] would be that of an utterly emotionless

human being . . . .’’ (Citations omitted; internal quotation 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 predetermination 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 predisposition 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 predetermination 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 evidence in the record on which the plaintiffs rely relates

to the timing of the commission’s denial of their application, 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 . . . application,’’ and ‘‘the blatant inconsistency between its findings 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 distinguishable 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 commission 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 amendment . . . 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 commission appeared to be favoring opponents of the application 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] application 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 unsatisfactory 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 conclusion that the ‘‘zoning amendment [at issue] was enacted

primarily for the purpose of preventing the plaintiff

from going forward with its contemplated building project’’; 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 application 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. Greenwich, 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 challenge 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 Morningside 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 revision. [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 prescribed legislative powers. . . . The courts allow zoning authorities this discretion in determining the public

need and the means of meeting it, because the local

authority lives close to the circumstances and conditions 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 quotation 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 underscores the inevitable tension between a commission’s

legislative determination leading to the presumptive

compatibility of the use . . . and a subsequent administrative 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].’’ (Citations 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 special permit application only for the commission subsequently 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 municipalities. 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 determination, however, is ill-suited for resolution in an

appeal from a commission’s denial of a special permit 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, Connecticut 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.’’ (Emphasis 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 crematory 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, including 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 adjudication 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 commission 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 considered 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 evaluate ‘‘[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 relevant 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 commission’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 application 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. . . . Moreover, 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 residential 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 Connecticut, 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 measurement 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 support 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 commissioners during the September 8, 2015 session. During this session, the chairperson 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 proposed 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 information 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 articulation 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.