*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
APPENDIX

NORTHWEST HILLS CHRYSLER JEEP, LLC, ET AL.

v. DEPARTMENT OF MOTOR VEHICLES ET AL.*

Superior Court, Judicial District of New Britain

File No. CV-18-6042924-S

Memorandum filed April 15, 2019

Proceedings

Memorandum of decision on plaintiffs’ appeal from

decision by named defendant. Appeal dismissed.

James J. Healy, Jason T. Allen, pro hac vice, and

Richard N. Sox, pro hac vice, for the plaintiffs.

Eileen Meskill, assistant attorney general, and George

Jepsen, former attorney general, for the named defendant et al.

Charles D. Ray, Shawn S. Smith, George W. Mykulak,

pro hac vice, and Caitlin W. Monahan, pro hac vice,

for the defendant FCA US, LLC.

Jay B. Weintraub, John L. Bonee and Eric H.

Rothauser, for the defendant Mitchell Dodge, Inc.
Opinion

HUDDLESTON, J. In this administrative appeal, four

automobile dealers assert that the defendants Department of Motor Vehicles and its commissioner, Michael

R. Bzdyra (collectively, department), improperly denied

their protest to the decision of the defendant FCA US,

LLC (FCA), to establish a new Jeep dealership in Canton. They assert that the department (1) failed to comply

with its statutory mandate to consider the existing circumstances of two of the dealers, (2) made findings

that are not supported by substantial evidence with

respect to three statutory factors, and (3) made irreconcilable findings with respect to two of the factors. FCA

and the department, in separate briefs, disagree. After

considering all the arguments of the parties, and

reviewing the entire administrative record, the court

concludes that the department’s decision is neither

incomplete nor inconsistent and is supported by substantial evidence. Accordingly, for the reasons stated

below, the appeal is dismissed.

LEGAL FRAMEWORK

In Connecticut, the relationships between manufacturers and dealers of motor vehicles are governed by

General Statutes §§ 42-133r through 42-133ee. These

provisions recognize the ‘‘need for intra-brand competition.’’ McLaughlin Ford, Inc. v. Ford Motor Co., 192

Conn. 558, 569 n.14, 473 A.2d 1185 (1984). Section 42-

133r (14) defines ‘‘ ‘[r]elevant market area’ ’’ as ‘‘the

area within a radius of fourteen miles around an existing

dealer or the area of responsibility defined in a franchise, whichever is greater.’’ The law ‘‘does not guarantee an exclusive right to operate a dealership within a

fourteen mile radius, but rather requires the [C]ommissioner of [M]otor [V]ehicles to demonstrate good cause,

as defined in the statute, for denying the addition or

relocation of a dealer in the objecting dealer’s relevant

market area.’’ (Internal quotation marks omitted.)

McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569

n.14.

If a manufacturer wants to add a new dealer or to

relocate an existing dealer within the relevant market

area of an existing dealer, General Statutes § 42-133dd

(a)1

requires the manufacturer to notify the Commissioner of Motor Vehicles and each existing dealer of its

intention. If an existing dealer files a protest with the

commissioner, the manufacturer cannot proceed until

the commissioner has held a hearing and has determined whether there is good cause for denying the

manufacturer’s plan. The manufacturer bears the burden of proving that good cause exists for permitting

the proposed establishment or relocation. Section 42-

133dd (c) sets out eleven nonexclusive ‘‘circumstances’’

or factors to be considered in determining whether good

cause exists.2
DEPARTMENT’S FINDING OF FACTS

AND CONCLUSIONS OF LAWS3

Mitchell Dodge, Inc., doing business as Mitchell

Chrysler Dodge (Mitchell), operates a Chrysler, Dodge,

Ram (CDR) dealership presently located at 416 Hopmeadow Street in Simsbury. There are thirty CDR dealerships in Connecticut; all but four of them also sell the

Jeep line. Mitchell is one of the four dealers currently

without the Jeep line.

The four plaintiffs operate Chrysler, Dodge, Jeep,

Ram (CDJR) dealerships in Connecticut. Northwest

Hills Chrysler Jeep, LLC (Northwest), operates a CDJR

dealership in Torrington. Gengras Chrysler Dodge Jeep,

LLC (Gengras), operates a CDJR dealership in East

Hartford. Crowley Chrysler Plymouth, Inc., doing business as Crowley Chrysler Jeep Dodge Ram (Crowley),

operates a CDJR dealership in Bristol. Papa’s Dodge,

Inc. (Papa’s), operates a CDJR dealership in New Britain. Each of their dealerships is within fourteen miles

of Mitchell’s present location.

In 2007, FCA’s predecessor, DaimlerChrysler Motors

Company, LLC, looked to add the Jeep line to Mitchell’s

franchise at its present location. It gave the statutorily

required notice to the dealers in the relevant market

area. Northwest, Gengras, Crowley, and Papa’s filed a

protest pursuant to § 42-133dd (a), and the proposal to

establish the Jeep line at Mitchell’s present location

was withdrawn on March 5, 2007.

On May 5, 2016, FCA gave notice to the department

and to affected existing Jeep dealers that Mitchell

intended to construct a facility at 71 Albany Turnpike

in Canton, where it would relocate its existing CDR

dealership, and requested to add the Jeep line. On May

23, 2016, Northwest, Gengras, Crowley, and Papa’s protested the establishment of the Jeep line. They did not

protest the relocation of Mitchell’s CDR dealership.4

In FCA’s dealer agreements, a ‘‘sales locality’’ is a

geographic area of responsibility defined by specific

census tracts. These are nonexclusive areas. Mitchell

and the protesting dealers are located within three sales

localities. Mitchell’s present location, Gengras, and

Papa’s are located within the FCA’s Hartford sales locality. Mitchell’s proposed location is also within the Hartford sales locality. Crowley is within the FCA’s Bristol

sales locality, and Northwest is within the FCA’s Torrington sales locality.

FCA further divides sales localities into ‘‘trade

zones,’’ also defined by census tracts. The Hartford sales

locality is divided into five trade zones: Enfield, East

Hartford, New Britain, Rockville, and Simsbury. Of the

five trade zones, two—Enfield and Simsbury—do not

presently have Jeep dealerships, and are known in the

trade as ‘‘open points.’’
Section 42-133dd (c) requires the commissioner or

his designee to ‘‘take into consideration the existing

circumstances,’’ which ‘‘includ[e], but [are] not limited

to,’’ eleven circumstances. The final decision addressed

each of the eleven specified circumstances.

Section 42-133dd (c) (1) requires consideration of

the ‘‘permanency and size of investment made and the

reasonable obligations incurred by the existing new

motor vehicle dealers in the relevant market area

. . . .’’ As to this consideration, the department found

that the existing motor vehicle dealers ‘‘have made significant and permanent investments, and have incurred

financial obligations in their dealership facilities,

located in the respective relevant market area.’’ The

department acknowledged FCA’s argument that the

dealers’ investments had been made over a period of

years, that the protesting dealers ‘‘are strong dealers

who have successfully completed and succeeded

against other dealers,’’ including Mitchell in its present

location, and that the dealers’ agreements with FCA

are expressly ‘‘ ‘non-exclusive’ . . . .’’

Section 42-133dd (c) (2) requires consideration of the

‘‘growth or decline in population and new car registrations in the relevant market area . . . .’’ As to this

consideration, the department found that between 2000

and 2015, the population in the Hartford sales locality

grew by over 40,000, or 4.9 percent. In the Simsbury

trade zone, where the proposed Jeep location would

be established, the population grew by 9.1 percent,

which the department found to be the highest percentage of growth of all trade zones in the Hartford sales

locality and higher than the growth in the Torrington

and Bristol sales localities. The department found that

both population and household growth is projected to

be less than 1 percent between 2015 and 2020, rising

slightly but remaining stable. Vehicle registrations in

Connecticut rose by a significant percentage from 2010

through 2015, with Jeep registrations increasing by

172.5 percent. The department noted, however, that

sales ‘‘peaked and plateaued in 2016,’’ a nationwide

trend that may continue. The department observed that

the protesting dealers saw this slowing growth as support for their position that another Jeep dealership is

not needed.

Section 42-133dd (c) (3) requires consideration of the

‘‘effect on the consuming public in the relevant market

area . . . .’’ The department found that the consuming

public would benefit from the addition of the Jeep line

at the proposed location. Route 44 (Albany Turnpike)

in Canton has evolved into an ‘‘auto row’’—an area

where numerous vehicle brands have established dealership locations and compete within the vicinity of each

other. Presently located near the proposed location are

competitors of Jeep, including Chevrolet, Acura, Subaru,

Volkswagen, Nissan, Toyota, Land Rover, and Honda
dealers. The department found that ‘‘[a]uto rows are

now common, and provide a convenience to consumers

in having the ability to shop and compare competing

brands at dealerships in close proximity.’’ The department also found that drive time is significant to consumers. Although the parties disagreed as to the amount

of time consumers would save if a new Jeep line were

added at the proposed location, the department found

that distances and drive times from the proposed location to the protesting dealers’ locations are not insignificant, and that location on such an auto row would

increase interbrand and intrabrand competition, to the

consumer’s benefit.

Section 42-133dd (c) (4) requires consideration of

‘‘whether it is injurious or beneficial to the public welfare for a new dealer to be established . . . .’’ The

department found that the addition of construction and

dealership based jobs, payroll and property taxes, and

sales and use tax revenue would be beneficial to the

public welfare in the Simsbury trade zone and particularly in Canton, the site of the proposed location. The

department acknowledged the protesting dealers’ argument that the benefit in construction jobs was only

speculative, as there were only projections by Mitchell

and one of the FCA experts as to what expenditures

Mitchell would make if it were granted the Jeep dealership. The department observed that Mitchell could not

be expected to have a detailed proposal in place, since

it did not know if or when it would be allowed to add

the Jeep line, and its ability to obtain the necessary

approvals and financing for the project required the

approval of the Jeep line at the proposed location. The

department concluded that approval of the Jeep vehicle

line ‘‘is not injurious to the public welfare.’’

Section 42-133dd (c) (5) requires consideration of

‘‘whether the dealers of the same line make in that

relevant market area are providing adequate competition and convenient customer care for the motor vehicles of the line make in the market area including the

adequacy of motor vehicle sales and service facilities,

equipment, supply of motor vehicle parts, and qualified

service personnel . . . .’’ As to this consideration, the

department found that the protesting dealers have adequate service facilities, equipment, supply of motor

vehicle parts, and qualified service personnel. The protesting dealers already compete successfully with

Mitchell in a number of segments and franchises, including new CDR vehicles, the sale of used, certified preowned vehicles, including CDR and Jeep, warranty and

out of warranty service on CDR and Jeep vehicles, and

sales of parts for CDR and Jeep vehicles. As the department observed, however, the Simsbury trade zone has

never had a Jeep dealership, and sales of new Jeeps in

that trade zone have to be handled by in-selling. The

only option for consumers in that area is to search for

and purchase a new Jeep from a dealership outside the
area, which, with Internet advertising, could be a dealer

other than the protesting dealers. Television and

Internet advertising by the protesting dealers reaches

far beyond their relevant market areas, into adjoining

states.

In considering § 42-133dd (c) (5), the department discussed registration effectiveness, a measure used by

the automotive industry to assess brand performance.

Registration effectiveness compares brand registrations within a territory to the expected number of registrations. It is distinct from dealer performance, which

is calculated on ‘‘[m]inimum [s]ales [r]esponsibility,’’ or

MSR. As the department observed, ‘‘[d]ealer performance measures whether a dealer has captured the

opportunity for sales assigned to it.’’ FCA’s dealers in

the Hartford sales locality meet their MSRs, but the

Hartford sales locality is only 84 percent registration

effective. This indicates lost sales for the brand and

supports the need for another Jeep dealer.

Section 42-133dd (c) (6) considers ‘‘whether the

establishment of a new dealer would increase or

decrease competition . . . .’’ FCA argued that a new

Jeep dealer would result in better prices, better choices,

and better service as a result of the visibility of the

proposed location, additional expected advertising by

Mitchell, and increased interbrand competition. FCA

also argued that existing dealers were not selling

enough Jeeps to meet their expected market share. On

the other hand, the protesting dealers argued that Jeep

parts and service are already available in the Simsbury

trade zone at Mitchell’s existing location, and the addition of the Jeep line for sales would result in only

‘‘[minimally improved] convenience.’’ The department

found that, on balance, the addition of the Jeep line at

the proposed location would increase competition.

Section 42-133dd (c) (7) requires consideration of

‘‘the effect on the relocating dealer of a denial of its

relocation into the relevant market area . . . .’’ The

department observed that, although this case involves

the establishment of a new Jeep dealer rather than the

relocation of an existing Jeep dealer, consideration of

the eleven circumstances set out in § 42-133dd (c) are

not exclusive. Considering the effect of a denial of the

Jeep line on Mitchell, the department found that Mitchell had been losing money for years in its present location, and the possibility that it would have to relinquish

its CDR dealership was relevant in terms of Mitchell’s

overall financial health. Loss of Mitchell’s CDR dealership would adversely affect the customers who currently use Mitchell’s services at its present location.

Section 42-133dd (c) (8) requires consideration of

‘‘whether the establishment or relocation of the proposed dealership appears to be warranted and justified

based on economic and marketing conditions pertinent

to dealers competing in the community or territory,
including anticipated future changes . . . .’’ The

department made extensive findings with respect to

this issue. It found that the annual number of new vehicle sales for all manufacturers increased significantly

from 2009–2010, when it was approximately twelve million units, to 2016, when sales were in excess of seventeen million units. In Connecticut, the Jeep line, measured by registrations, increased from 3945 in 2010 to

10,751 in 2015.

The department further found that when Chrysler

emerged from bankruptcy in 2009 and FCA acquired

certain of its assets, one of FCA’s goals was to establish

Chrysler, Dodge, Jeep, and Ram as a unified franchise

under one roof. This consolidation plan was presented

to the Bankruptcy Court both as a plan of survival for

the brand and a plan that would benefit dealers and

consumers. Approximately 60 to 70 percent of FCA’s

sales in the United States come from Jeep. In light of

the greatly increased consumer preference for sport

utility vehicles (SUVs), FCA is increasing production

of Jeeps and introducing new models, with the expectation of selling 24 percent more Jeeps by 2020 than are

currently sold. Existing dealers have benefited from

this trend and will continue to benefit from planned

new products and increased production volume.

The department found that the protesting dealers do

sell Jeeps into the Simsbury trade zone, but most of their

sales are made near their dealerships. It is a priority of

FCA to establish dealerships, including the Jeep line,

in auto rows such as the one in Canton to encourage

cross-shopping and to be competitive with non-FCA

brands.

The department found that Northwest’s auto group

includes a Chevrolet, Buick, GMC, Cadillac dealership

in Torrington that competes with Davidson Chevy,

which is less than a mile from Mitchell’s proposed location in Canton. In addition, the family that owns Northwest also owns O’Neill Chevrolet Buick in Avon,

approximately three and a half miles from Davidson

Chevy, and also owns a Honda dealership in Torrington

that competes with Hoffman Honda in West Simsbury.

The department found that Crowley’s dealership

group includes Nissan Crowley in Bristol, which competes with Hoffman Nissan in Canton. Hoffman Nissan

is located near Mitchell’s proposed location. Crowley

also owns a Volkswagen dealership in Plainville that

competes with Mitchell Volkswagen in Canton, less

than a mile from Mitchell’s proposed location for adding

the Jeep line.

The department found that Mitchell owns both 71

and 91 Albany Turnpike in Canton. Mitchell currently

operates a Subaru dealership at 71 Albany Turnpike. If

granted a Jeep dealership, Mitchell plans to build a

new facility for Subaru at 91 Albany Turnpike and to
renovate the proposed location at 71 Albany Turnpike

for the CDJR dealership. The proposed location is

already zoned for an auto dealership. The expert for

the protesting dealers admitted that it is very difficult

to find dealership locations in the Northeast that are

not severely constrained by space or zoning.

The department acknowledged that a June, 2014 Hartford Market Study by FCA listed Simsbury as one of

FCA’s lowest market priorities in the greater Hartford

market. After Mitchell advised FCA of its plan for the

proposed location, however, FCA changed its priorities.

The department found that such a change was to be

expected.

The department concluded that the increased popularity of SUVs; intense marketing on television, the

Internet, and in print media; and heightened interbrand

competition justify allowing the Jeep line at the proposed location. The department found that it is necessary to balance the interests of consumers, the local

community, the establishing dealer, the vehicle manufacturer, and the existing dealers.

Section 42-133dd (c) (9) requires consideration of

‘‘the reasonably expected market penetration of the

line-maker motor vehicle for the community or territory

involved, after consideration of all factors which may

affect said penetration, including, but not limited to,

demographic factors such as age, income, education,

size class preference, product popularity, retail lease

transactions, or other factors affecting sales to consumers of the community or territory . . . .’’ As to this

consideration, the department explained that ‘‘[m]arket

penetration is the share a particular brand gets of a

competitive set. Market penetration is the same as market share: how much business is transacted relative to

the business available. Registration effectiveness is how

well a brand does relative to what is expected from the

brand.’’ The department found that in the Hartford sales

locality, Jeep’s existing market share is less than its

expected market share, using 2015 numbers. In that

year, Jeep’s expected market share in the Hartford sales

locality was 9.85 percent, but its actual market share

was 8.24 percent. If Jeep had achieved its expected

market share in 2015, it would have sold 2086 vehicles

in the Hartford sales locality, but in fact it sold only

1744 vehicles.

Section 42-133dd (c) (10) requires consideration of

‘‘the economic impact of an additional franchise or relocated motor vehicle dealership upon the existing motor

vehicle dealers of the same line make in the relevant

market area to be served by the additional franchisee

or relocated motor vehicle dealership . . . .’’ The

department found that the addition of a Jeep dealership

at the proposed location would result in some financial

loss to the existing dealers. Although FCA’s expert contended that there is sufficient lost opportunity from
interbrand competition to have the new dealership

established and not take any sales from the existing

dealers, the protesting dealers testified that the proposed location would cause a financial loss to them

and might result in a reduction of employees, with a

corresponding loss in customer service. The department found that the protesting dealers all have well

established Jeep dealerships with well regarded sales

and service departments. It found that ‘‘[o]ne cannot say

that the consumer will abandon the [protesting dealers’]

dealerships and patronize a new dealership such as the

[p]roposed [l]ocation based solely on convenience for

the purchasing of a new Jeep.’’ The department

observed that both FCA and the protesting dealers

acknowledge the significance of Jeep sales to a CDJR

dealership. It found that although motor vehicle sales

have leveled off, Jeep sales are expected to remain

strong, providing continued opportunity for both the

protesting dealers and Mitchell.

Section 42-133dd (c) (11) requires consideration of

‘‘the retail sales and service business transacted by the

existing dealers of the same line make in the market

area to be served by the proposed new or relocated

dealer as compared to the business available to them

during the three-year period immediately preceding

notice.’’ As to this consideration, the department found

that Jeep registration effectiveness in the Hartford sales

locality indicated lost Jeep sales in the years preceding

the notice. In 2015, the Hartford sales locality had the

third lowest registration effectiveness in the state, at

83.6 percent, and the Bristol RMA was at 85.7 percent.

The department found that the protesting dealers have

been in-selling into the Simsbury trade zone, where

there is no new Jeep dealership. It further found that the

establishment of a new Jeep dealership in the Simsbury

trade zone would not prevent the protesting dealers

from continuing to in-sell into the Simsbury trade zone.

The department concluded that, ‘‘[b]ased upon the

evidence presented, and taking into consideration criteria set forth in . . . § 42-133dd, good cause exists for

permitting the establishment of a new Jeep dealer at

71 Albany Turnpike in Canton . . . .’’ It accordingly

dismissed the protests of the protesting dealers and

ordered that FCA may establish a new Jeep dealer at

71 Albany Turnpike in Canton. This appeal followed.

SCOPE OF REVIEW

The plaintiffs appeal pursuant to General Statutes

§ 4-183.5

‘‘[J]udicial review of the commissioner’s action

is governed by the Uniform Administrative Procedure

Act . . . General Statutes §§ 4-166 through 4-189 . . .

and the scope of that review is very restricted . . . .’’

[R]eview of an administrative agency decision requires

a court to determine whether there is substantial evidence in the administrative record to support the

agency’s findings of basic fact and whether the conclu-
sions drawn from those facts are reasonable.’’ (Citation

omitted; internal quotation marks omitted.) Murphy v.

Commissioner of Motor Vehicles, 254 Conn. 333, 343,

757 A.2d 561 (2000). ‘‘Substantial 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.) Schallenkamp v.

DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). ‘‘The

substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision

of an administrative agency . . . and to provide a more

restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.’’ (Internal quotation marks omitted.)Cadlerock Properties Joint Venture, L.P. v. Commissioner of

Environmental Protection, 253 Conn. 661, 676, 757 A.2d

1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089,

148 L. Ed. 2d 963 (2001). ‘‘In determining whether an

administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s

assessment of the credibility of witnesses. . . . The

reviewing court must take into account contradictory

evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s finding

from being supported by substantial evidence . . . .’’

(Internal quotation marks omitted.) Frank v. Dept. of

Children & Families, 312 Conn. 393, 411–12, 94 A.3d

588 (2014).

Our Supreme Court has repeatedly stated that

‘‘administrative tribunals are not strictly bound by the

rules of evidence and . . . may consider exhibits [that]

would normally be incompetent in a judicial proceeding, [as] long as the evidence is reliable and probative.’’

Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d

110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930,

53 L. Ed. 2d 1066 (1977). ‘‘It is axiomatic, moreover, that

it is within the province of the administrative hearing

officer to determine whether evidence is reliable . . .

and, on appeal, the plaintiff bears the burden of proving

that the commissioner, on the facts before him, acted

contrary to law and in abuse of his discretion . . . .

Neither this court nor the [Appellate Court] may retry

the case or substitute its own judgment for that of

the [hearing officer with respect to] the weight of the

evidence or questions of fact. . . . Our ultimate duty

is to determine, in view of all of the evidence, whether

the agency, in issuing its order, acted unreasonably,

arbitrarily, illegally or in abuse of its discretion.’’ (Citations omitted; internal quotation marks omitted.) Do v.

Commissioner of Motor Vehicles, 330 Conn. 651, 667–

68, 200 A.3d 681 (2019).

Section 4-183 (j) requires affirmance of an agency’s

decision unless the court finds that substantial rights

of the person appealing have been prejudiced by the

claimed error. ‘‘The complaining party has the burden
of demonstrating that its substantial rights were prejudiced by the error.’’ (Internal quotation marks omitted.)

Miller v. Dept. of Agriculture, 168 Conn. App. 255, 266,

145 A.3d 393, cert. denied, 323 Conn. 936, 151 A.3d 386

(2016). ‘‘It is fundamental that a plaintiff has the burden

of proving that the [agency], on the facts before [it],

acted contrary to law and in abuse of [its] discretion

. . . .’’ (Internal quotation marks omitted.) Murphy v.

Commissioner of Motor Vehicles, supra, 254 Conn.

343–44.

DISCUSSION

The plaintiffs advance three arguments in support

of their appeal. First, they assert that the department

committed legal error by failing to make specific findings as to each of the eleven statutory considerations for

each protesting dealer. Second, they assert that certain

factual findings are not supported by substantial evidence and that two of the findings are inconsistent with

each other. Third, they argue that the department’s legal

conclusion does not follow legally and logically from

certain undisputed facts. More generally, they argue

that the protesting dealers were successful Jeep dealers

and consistently exceeded FCA’s goals; that FCA’s decision to add a Jeep dealer in Canton was based on the

personal preference of a single manager who had formerly worked for Toyota and wanted Jeep to be located

near Toyota; and that the evidence showed a contracting automobile market, a stagnant population,

‘‘extreme’’ Jeep competition, and an insufficient supply

of Jeeps for current dealers.

In response, FCA argues that the plaintiffs’ arguments

are waived, contradict the arguments they made before

the department, misconstrue the dealer statute, and

are legally immaterial. FCA also argues that substantial

evidence supports the department’s decision. The

department argues that the hearing officer properly considered all the statutory factors as to all of the plaintiffs,

that the findings are not inconsistent and are supported

by substantial evidence, and that the department is

afforded considerable discretion in weighing the statutory factors.

The court has reviewed the entire administrative

record, including the transcripts, the exhibits, the posthearing briefs, and the final decision. Based on its

review, it concludes that the plaintiffs have not met

their burden of showing any prejudicial error.

A

The plaintiffs’ first argument is that the hearing officer failed to make specific findings as to each dealer

on each statutory point, thereby depriving certain of

the plaintiffs of their right to a decision based on their

own circumstances. Similar arguments have been

rejected at least twice in the past. See A-1 Auto Service,

Inc. v. Dept. of Motor Vehicles, Superior Court, judicial
district of Hartford-New Britain, Docket No. CV-96-

0558549 (July 18, 1996) (Maloney, J.) (basis of hearing

officer’s decision was clear despite failure to state subordinate conclusions as to some factors); Mario D’Addario Buick, Inc. v. Dept. of Motor Vehicles, Superior

Court, judicial district of New Britain, Docket No. CV01-0505960-S (October 12, 2001) (Schuman, J.) (hearing

officer not required to make specific findings on each

factor but merely to consider them all). Courts have

considered whether the basis for the ultimate conclusion is clear and reflects consideration of the statutory

factors. In A-1 Auto Service, Inc., the court observed

that the hearing officer’s ultimate conclusion was simply that ‘‘ ‘existing circumstances’. . . do not establish

good cause for denying the new franchise. As noted,

the findings of fact are explicit and thorough; they completely cover the circumstances as required by the statute; and they provide an understandable and reasonable

basis for the ultimate decision. If the hearing officer

failed to label some subordinate conclusions as such

or failed to state some subordinate conclusions explicitly, the plaintiff has not demonstrated any material

prejudice as a result.’’

The plaintiffs here claim that the department failed

to make findings about Northwest and Crowley as to

the fifth, ninth, and eleventh statutory factors. The fifth

factor directs the department to consider ‘‘whether the

dealers of the same line make in that relevant market

area are providing adequate competition and convenient customer care for the motor vehicles of the line

make in the market area including the adequacy of

motor vehicle sales and service facilities, equipment,

supply of motor vehicle parts, and qualified service

personnel . . . .’’ General Statutes § 42-133dd (c) (5).

Contrary to the plaintiffs’ claim, the department

expressly found that all of the protesting dealers have

adequate service facilities, equipment, supply of motor

vehicle parts, and qualified service personnel. Final

Decision, ¶ 25. Turning from service to sales, the department observed that the Simsbury trade zone has never

had a new Jeep dealership, with the result that consumers in that trade zone had to search for and purchase

new Jeeps outside the area. It further observed that

while the dealers in the Hartford sales locality met their

minimum sales requirements, registration effectiveness

(a measure of market share) was only 84 percent. In

sum, the department found that dealers of the same

line make were providing adequate competition in service but not adequate or convenient competition in sales

of new Jeeps in the proposed location. This conclusion

was supported by substantial evidence in the record.

The plaintiffs also claim that the department failed to

make necessary findings about the ninth factor, which

directs the department to consider ‘‘the reasonably

expected market penetration of the line-maker motor

vehicle for the community or territory involved, after
consideration of all factors which may affect said penetration, including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, or

other factors affecting sales to consumers of the community or territory . . . .’’ General Statutes § 42-133dd

(c) (9). The plaintiffs claim that the department erred

in failing to focus on Canton, the proposed location,

as ‘‘the community or territory involved.’’ The court

disagrees. The statute employs undefined

alternatives—‘‘community or territory involved’’—

rather than the statutorily defined ‘‘relevant market

area.’’ By using broad, undefined alternative terms, the

statute clearly affords the department substantial discretion to determine the most relevant ‘‘community or

territory involved.’’ The department did not abuse its

discretion in focusing on the Hartford sales locality in

which the proposed location was located. Substantial

evidence supports the department’s finding that Jeep’s

market share in the Hartford sales locality was 8.24

percent, lower than its expected market share of 9.85

percent, with sales of only 1744 vehicles as compared

to expected sales of 2086 vehicles.

The plaintiffs also claim that the department erred

by failing to make specific findings concerning the retail

sales of Jeeps in Canton and in Northwest’s relevant

market area, as they claim is required by the eleventh

factor. That factor requires the department to consider

‘‘the retail sales and service business transacted by the

existing dealers of the same line make in the market

area to be served by the proposed new or relocated

dealer as compared to the business available to them

during the three-year period immediately preceding

notice.’’ General Statutes § 42-133dd (c) (11). The plaintiffs claim that the department was required to make

specific findings as to market penetration in the ‘‘Canton/Simsbury market’’ as well as the Bristol and Northwest sales localities. The department and FCA disagree.

They argue that the hearing officer correctly discussed

the Hartford sales locality as ‘‘the market area to be

served by the proposed new or relocated dealer.’’ The

court agrees with the defendants. Subsection (c) (11)

requires consideration of the market area to be served

by the proposed new Jeep dealer. The department reasonably focused on the Hartford sales locality in which

the new dealership would be established. It observed

that registration effectiveness, an industry measure of

market share, indicated lost sales in the Hartford sales

locality and in the Bristol relevant market area as well.

It further noted that the protesting dealers had been

in-selling into the Simsbury trade zone for years and

could continue to do so after a new Jeep dealership

was established.

As FCA argues, many of the statutory factors overlap

with each other. By focusing on alleged failures with

respect to specific factors, the plaintiffs ignore the fact
that many of the findings relate to more than one factor.

Review of the decision as a whole demonstrates that

the department considered each protesting dealer’s

sales and service activities in its relevant market area.

It identified each of the protesting dealers and their

relevant market areas. Final Decision, ¶¶ 1, 12 and

13. It acknowledged their significant and permanent

investments in their dealerships. Id., ¶ 15. It found that

all the protesting dealers provided adequate competition in the service of vehicles and met their minimum

sales responsibility under their agreements with FCA.

Id., ¶¶ 25 and 28. It found, however, that registration

effectiveness in the Hartford sales locality was only

84 percent, despite the fact that all protesting dealers

advertised in, and made sales into, that sales locality.

Id., ¶¶ 26 through 28 and 37.

The department construed § 42-133dd (c) as requiring

the department to balance ‘‘the interests of consumers,

the local community, the establishing dealer, the vehicle

manufacturer, and the existing dealers . . . .’’ Id., ¶ 43.

This was clearly correct. Section 42-133dd (c) evidences

concern for existing dealers in subdivisions (1), (5), (8),

(10) and (11). Concern for the consuming public, and

for competition generally, is explicitly addressed in subdivisions (3), (4) and (5) and implicit in several other

subdivisions. Concern for fairness to the manufacturer

is explicit or implicit in subdivisions (2), (3), (5) and (9).

Concern for relocating dealers is expressly addressed

in subdivision (7). Section 42-133dd (c) does not exist

solely to protect the interests of existing dealers, but

to assure healthy competition in the market. Healthy

competition, the statute assumes, is good for the consuming public and ultimately benefits manufacturers

and dealers as well. The final decision as a whole

reflects the department’s consideration of the factors

set out in the statute.

B

The plaintiffs next argue that the department’s findings as to subdivisions (6), (7) and (8) are not supported

by substantial evidence, and that the findings as to

subdivisions (3) and (10) are irreconcilable. ‘‘In determining whether an administrative finding is supported

by substantial evidence, a court must defer . . . to the

agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in

part.’’ (Internal quotation marks omitted.) Bancroft v.

Commissioner of Motor Vehicles, 48 Conn. App. 391,

400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d

234 (1998).

Under subdivision (6), the department found that on

balance, allowing the addition of a Jeep dealership at

the proposed location would increase competition.

Final Decision, ¶ 31. The plaintiffs dispute this finding,

arguing that the evidence demonstrated that vehicle

pricing is at historically low levels in the relevant market
areas. They also argue that there were not enough Jeep

vehicles to meet demand. Finally, they argue that competition for Jeep service cannot be enhanced because

Mitchell already performs Jeep service at its present

location.

The plaintiffs’ arguments are not well founded. There

was substantial evidence that locating a dealership in

an auto row near dealerships of competing brands

increases interbrand competition. Such evidence came

not only in the testimony of FCA’s dealer placement

managers and its expert witness, but also in the admissions of some of the protesting dealers on cross-examination. Jonathan Gengras, for instance, admitted that

being in an auto row ‘‘stimulates competition to be

among a number of dealerships where consumers can

cross-shop.’’ Transcript, May 22, 2017, p. 155. He further

admitted that the proposed location was part of an auto

row and was a ‘‘great location to shop for a vehicle.’’ Id.,

pp. 155–56. Domenic Papa admitted that competition

provides consumers with better prices, better choices,

and better attention from the dealers. Transcript, May

19, 2017, pp. 14–15.

The plaintiffs’ claim that there were not enough Jeeps

to meet demand was countered by evidence that FCA

was building a second plant for Jeep Wranglers, one of

the most popular models, and expected to increase

production enough to increase sales by 24 percent

within a couple of years. The hearing officer credited

this evidence. See Final Decision, ¶ 36.

The plaintiffs’ claim that competition for Jeep service

would not be enhanced because Mitchell already services Jeeps is not persuasive. There was evidence that

Mitchell was at a disadvantage in getting Jeep service

work because many customers choose to service their

vehicles at the dealership where they purchased it.

Indeed, there was evidence that dealers use the point

of sale to try to sell service contracts to enhance the

likelihood that purchasers will return to that dealership

for service.

The plaintiffs also claim that the department’s findings with regard to subdivision (7) are not relevant to

the analysis and not supported by substantial evidence.

Subdivision (7) directs the department to consider the

effect of a denial of a relocation request on a relocating

dealer. The department acknowledged, in the final decision, that it was not required to address subdivision (7)

because the protests before it involved the establishment of a new Jeep dealer rather than the relocation

of an existing one. It noted, however, that the list of

factors in § 42-133dd (c) is nonexclusive and deemed

it appropriate to consider the effect of denying the Jeep

line to Mitchell. It found that the negative financial

impact on Mitchell was well documented; Mitchell had

been losing money at its present location for years. It

also considered the possibility that Mitchell would be
forced to relinquish its CDR franchise if not granted

Jeep. It considered that termination of Mitchell’s CDR

franchise would adversely affect consumers who are

presently using Mitchell’s services at its present location.

The plaintiffs assert that the department’s finding was

not supported by substantial evidence because Mitchell’s president admitted that Mitchell had remained in

business throughout the recession and that, if he

decided to stop operating the existing CDR franchise,

he could sell it. But, as before, the plaintiffs discuss

only the evidence that was favorable to their position

and ignore the substantial evidence that supports the

department’s findings. The plaintiffs do not dispute that

Jeep sales constitute 60 to 70 percent of the new vehicle

sales at their dealerships. As demand for SUVs has

increased, there has been a corresponding decrease in

the demand for sedans. FCA managers testified that

Jeep and light truck sales have driven the success of

the business in recent years. Without the ability to sell

new Jeeps, Mitchell is at a substantial disadvantage in

relation to the dealers who sell all the CDJR lines. Mitchell testified that his CDR dealership had been losing

money for at least six years and that if he was not

allowed to add Jeep he would have to think ‘‘long and

hard’’ about whether to continue to operate it. William

Doucette, the dealer placement manager for FCA’s

Northeast region, testified that Mitchell was at a substantial disadvantage without Jeep. He testified that

Mitchell had been unable to make needed upgrades to

its Simsbury facility because it lacked the revenue from

Jeep sales to support such an investment. Doucette

thought it likely that Mitchell would voluntarily terminate his CDR franchise if he could not add Jeep. The

department did not err in considering that denying the

Jeep line to Mitchell would adversely affect its business.

The plaintiffs also argue that the department’s findings as to subdivision (8) are not supported by substantial evidence. Section 42-133dd (c) (8) requires the

department to consider ‘‘whether the establishment or

relocation of the proposed dealership appears to be

warranted and justified based on economic and marketing conditions pertinent to dealers competing in the

community or territory, including anticipated future

changes . . . .’’ The plaintiffs first argue that the

department improperly focused on historical conditions

and failed to give adequate attention to ‘‘anticipated

future changes . . . .’’ More specifically, they claim

that the automotive industry is expected to contract,

that there are no ‘‘growth projects’’ in Canton, and

school enrollment is decreasing. They next argue that

the department failed to reconcile FCA’s evolving ‘‘justifications’’ for the new Jeep dealership. They point to a

June, 2014 market study which showed that FCA did

not believe there was a market justification for adding

Jeep in Canton at that time, and then assert that FCA
reversed course in August, 2014, when Mitchell first

proposed to relocate to Canton and add the Jeep brand

there. The plaintiffs claim that the only thing that

changed was the availability of the Canton property

and an FCA manager’s desire to be near Toyota.

The claim that the department failed to consider

existing economic and marketing factors and anticipated future changes is refuted by the decision.

Although some of the findings are addressed under

headings other than the heading specifically discussing

subdivision (8), it is clear that the hearing officer considered the slowing population growth (¶ 18), the peak

and plateau of vehicle sales in 2016 (¶ 19), the plaintiffs’

argument that the slowing of population and household

growth supported denial of the Jeep addition (¶ 20),

the marketing advantages of locating a dealership on

an auto row (¶ 21), the increase in new vehicle sales

between 2009 and 2016, with a 172.5 percent increase

in the sale of Jeeps (¶ 34), the importance of the Jeep

line to FCA dealers, contributing 60 to 70 percent of

all FCA’s sales in the United States (¶ 36), FCA’s intention to increase production of Jeeps and to introduce

new Jeep models, with its expectation of increasing

Jeep sales by 24 percent by 2020 (¶ 36), and the recognition that while existing dealers sell into the Simsbury

trade zone, most of their sales are made near their

dealerships (¶ 37). The department further observed

that the existing dealers who had dealerships for brands

other than FCA brands were already competing with

dealers in Canton—for instance, Northwest’s auto

group includes a Chevrolet dealership in Torrington

that competes with a Chevy dealership less than a mile

from the proposed location for Mitchell’s Jeep dealership, and Crowley’s Nissan dealership in Bristol competes with Hoffman Nissan in Canton. The department

cited to specific testimony and exhibits that supported

its findings. The department did not fail to conduct a

proper analysis of economic and marketing conditions,

including anticipated future changes; it simply disagreed with the plaintiffs’ view of the evidence. That it

chose to credit FCA’s witnesses and expert more often

than the plaintiffs’ was its prerogative as the finder of

fact. As our Supreme Court and Appellate Court have

observed, ‘‘ ‘weighing the accuracy and credibility of the

evidence’ is the province of the administrative agency.

Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128, 136, 439 A.2d 282 (1981).

Reviewing courts thus ‘must defer to the agency’s

assessment of the credibility of the witnesses and to

the agency’s right to believe or disbelieve the evidence

presented by any witness, even an expert, in whole or

in part.’ Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989); see

also Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, 320 Conn. 611,

623, 134 A.3d 581 (2016) (reviewing court cannot ‘substi-
tute its own judgment for that of the administrative

agency on the weight of the evidence’ . . .); Tarasovic

v. Zoning Commission, 147 Conn. 65, 69, 157 A.2d 103

(1959) (‘[i]t is not the function of the court to pass upon

the credibility of the evidence heard’ by administrative

agency).’’ Fagan v. Stamford, 179 Conn. App. 440, 458,

180 A.3d 1 (2018).

The plaintiffs’ emphasis on FCA’s June, 2014 market

study is equally unavailing. The hearing officer acknowledged that in a June, 2014 study, FCA ranked four communities as higher priorities for improved performance

than Canton/Simsbury, but a follow-up study in August

of 2014 recommended relocating Mitchell to the proposed location and adding the Jeep line.6 Final Decision,

¶ 39. The hearing officer concluded that it was reasonable for FCA to adjust its priorities, in light of the popularity of the Jeep line, when Mitchell offered it the

opportunity to locate a CDJR dealership at a highly

visible location, on a busy thoroughfare, in close proximity to competing dealerships, that was already zoned

for an auto dealership. Id., ¶¶ 21, 36, 38, 42 and 44. As

the plaintiffs’ own expert admitted, in the Northeast it

is very difficult to find dealership locations with good

frontage and good buildings that are not severely constrained by space or zoning. Id., ¶ 42. The plaintiffs

disagree with the department’s judgment, but it is one

that was well supported by the evidence and well within

the discretion afforded the department.

The plaintiffs repeatedly argue that the sole reason

for FCA’s change in priorities was that its market representative, Dan Cantrell, had previously been employed

by Toyota and personally desired to locate Jeep dealerships near Toyota dealerships. Plaintiffs’ Brief, pp. 3,

4, 15, 16, 20, 22 and 23. This argument ignores the

testimony of FCA national and regional dealer placement managers, who testified about the importance

of locating dealerships near their competitors, a fact

acknowledged by the plaintiffs’ witnesses as well. It

also ignores the analysis in FCA’s expert report, which

the hearing officer cited frequently throughout the final

decision. The hearing officer was entitled to reject the

plaintiffs’ argument and to credit the substantial evidence presented by FCA as to the competitive importance of locating dealerships near their main competitors.

The plaintiffs also argue that two of the department’s

subordinate findings are ‘‘incompatible.’’ Under § 42-

133dd (c) (3), which considers the effect on the consuming public, the department found that the consuming

public would benefit from the addition of the Jeep line

at the proposed location because it is convenient to

shop and compare competing brands in an auto row

and because it would reduce drive times to a dealership.

Final Decision, ¶¶ 21 and 22. Under § 42-133dd (c)

(10), which considers the economic impact of a new
dealership on existing dealers, the department found

that consumers would not abandon existing dealers

solely based on convenience. Id., ¶ 50. These findings

are not inconsistent. As the department found, both

FCA and the protesting dealers presented evidence that

there would be some financial loss to existing dealers

as the result of the addition of a Jeep dealership at the

proposed location, but the probable amount of the loss

was vigorously disputed. Id., ¶ 47. FCA presented evidence that there was sufficient lost opportunity to have

the proposed location come into business and not take

any sales from the existing dealers, while the protesting

plaintiffs presented evidence that the proposed location

would affect them economically and possibly require

them to reduce the number of their employees. Considering the conflicting evidence, the department found

that the protesting dealers ‘‘all have well established

Jeep dealerships, with [well regarded] sales and services departments. One cannot say that the consumer

will abandon the [protesting dealers’] dealerships and

patronize a new dealership such as the [p]roposed

[l]ocation based solely on convenience for the purchasing of a new Jeep.’’ Id., ¶ 50. The department concluded

that because Jeep sales are expected to remain strong,

there would be ‘‘ample opportunity’’ for both the protesting dealers and Mitchell. Id., ¶ 51.

Under subdivision (3), the department found that

addition of a Jeep dealership at the proposed location

would be convenient for the consuming public and

would reduce drive times to Jeep dealerships. Under

subdivision (10), however, it found that convenience

would not be the sole factor considered by consumers.

It found that the protesting dealers had well established

and well regarded dealerships. It is not unreasonable

to infer that some consumers may prefer to continue

to do business with dealers they know and trust even if

a new dealer is more convenient. Moreover, a principal

reason for locating a dealership in an auto row is to

increase interbrand competition. There was substantial

evidence to support the finding that Jeep sales were

expected to remain strong and that there was ‘‘ample

opportunity’’ for both the protesting dealers and for

Mitchell, including improving Jeep’s market share in

comparison to other brands. The department’s findings

are not inconsistent. It is not unreasonable to find that

consumer behavior is affected by many factors, including convenience, loyalty, and proximity to competing

choices.

C

The plaintiffs’ final argument is that the department’s

ultimate conclusion—that there is good cause to add

a Jeep dealership at the proposed location—cannot follow legally and logically from the undisputed facts. The

plaintiffs present a list of purported ‘‘undisputed’’ facts,

some of which are undisputed, some of which are not
material, and some of which were disputed or countered by other evidence. It is undisputed, for instance,

that the protesting dealers are located within fourteen

miles of the proposed location; that is what gave them

the right to file a protest. Several of the purported facts

deal with Jeep sales in Canton. Even if undisputed,

those facts would not be dispositive because the relevant market areas were larger than Canton. The plaintiffs assert that there is no FCA policy to place Jeep

near Toyota; even if true, this assertion certainly ignores

abundant evidence that FCA preferred to locate dealerships in auto rows, in close proximity to competing

brands, to enhance interbrand competition. The plaintiffs assert that they all met their minimum sales requirements and had not been told they needed to improve

their sales in their assigned markets or in Canton. But,

as the department found, the manufacturer had wanted

to establish a Jeep dealership in the Simsbury trade

zone since 2007, when it first proposed to add Jeep to

the Mitchell franchise in Simsbury. Its previous effort

to add Jeep in the Simsbury trade zone provided notice

that it believed that the Jeep brand was not adequately

represented there.

In sum, the department did its job: it considered the

evidence presented by the plaintiffs, it considered the

evidence presented by FCA and Mitchell, and it decided

which evidence to credit. It cited frequently to the testimony and report of FCA’s expert, indicating that it

found that evidence to be credible. It weighed the interests of the existing dealers, the consuming public, the

community affected, the manufacturer, and the dealer

to be most affected by its decision, Mitchell. Despite

the plaintiffs’ efforts to recast these matters as legal

issues, the issues identified by the plaintiffs are factual

in character, and the ultimate conclusion is one in which

the department is afforded considerable discretion. It

is not the role of this court to second-guess the factual

findings and discretionary decisions of an administrative agency. See Frank v. Dept. of Children & Families,

supra, 312 Conn. 411–12 (‘‘[t]he reviewing court must

take into account contradictory evidence in the record

. . . but the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an

administrative agency’s finding from being supported

by substantial evidence’’ (internal quotation marks

omitted)).

CONCLUSION

The department’s decision adequately addressed the

statutory circumstances it was directed to consider. Its

factual findings are supported by substantial evidence

and are not inconsistent or incomplete. Accordingly,

the department’s decision must stand, and the plaintiffs’

appeal is dismissed. Judgment shall enter for the

defendants.

* Affirmed. Northwest Hills Chrysler Jeep, LLC v. Dept. of Motor Vehicles,

201 Conn. App. , A.3d (2020).
1 General Statutes § 42-133dd (a) provides in relevant part: ‘‘In the event

that a manufacturer or distributor seeks to enter into a franchise establishing

a new dealer or relocating an existing dealer within or into a relevant market

area where the same line make is then represented, the manufacturer or

distributor shall in writing, by certified mail, first notify the commissioner

and each dealer in such line make in the relevant market area of its intention

to establish a new dealer or to relocate an existing dealer within or into

that market area. Within twenty days of receiving such notice or within

twenty days after the end of any appeal procedure provided by the manufacturer or distributor, any such dealer may file with the commissioner a protest

concerning the proposed establishment or relocation of such new or existing

dealer. When such a protest is filed, the commissioner shall inform the

manufacturer or distributor that a timely protest has been filed, and that

the manufacturer or distributor shall not establish or relocate the proposed

dealer until the commissioner has held a hearing, nor thereafter, if the

commissioner determines that there is good cause for denying the establishment or relocation of such dealer. In any hearing held pursuant to this

section, the manufacturer or distributor has the burden of proving that good

cause exists for permitting the proposed establishment or relocation. . . .’’

2 General Statutes § 42-133dd (c) provides: ‘‘In determining whether good

cause has been established for not entering into a franchise establishing a

new dealer or relocating an existing dealer for the same line make, the

commissioner shall take into consideration the existing circumstances,

including, but not limited to: (1) The permanency and size of investment

made and the reasonable obligations incurred by the existing new motor

vehicle dealers in the relevant market area; (2) growth or decline in population and new car registrations in the relevant market area; (3) effect on the

consuming public in the relevant market area; (4) whether it is injurious or

beneficial to the public welfare for a new dealer to be established; (5)

whether the dealers of the same line make in that relevant market area are

providing adequate competition and convenient customer care for the motor

vehicles of the line make in the market area including the adequacy of motor

vehicle sales and service facilities, equipment, supply of motor vehicle parts,

and qualified service personnel; (6) whether the establishment of a new

dealer would increase or decrease competition; (7) the effect on the relocating dealer of a denial of its relocation into the relevant market area; (8)

whether the establishment or relocation of the proposed dealership appears

to be warranted and justified based on economic and marketing conditions

pertinent to dealers competing in the community or territory, including

anticipated future changes; (9) the reasonably expected market penetration

of the line-maker motor vehicle for the community or territory involved, after

consideration of all factors which may affect said penetration, including,

but not limited to, demographic factors such as age, income, education,

size class preference, product popularity, retail lease transactions, or other

factors affecting sales to consumers of the community or territory; (10) the

economic impact of an additional franchise or relocated motor vehicle

dealership upon the existing motor vehicle dealers of the same line make

in the relevant market area to be served by the additional franchisee or

relocated motor vehicle dealership; and (11) the retail sales and service

business transacted by the existing dealers of the same line make in the

market area to be served by the proposed new or relocated dealer as compared to the business available to them during the three-year period immediately preceding notice.’’

3 Over seven days in May, 2017, a department hearing officer conducted

the required hearing. He heard testimony from four FCA managers, a representative of each of the protesting dealers, the president of Mitchell [Dodge,

Inc.], two expert witnesses for FCA, and two expert witnesses for the

protesting dealers. FCA and the protesting dealers introduced some 190

exhibits and submitted posthearing briefs. The hearing officer subsequently

issued a final decision on January 19, 2018, from which these facts are

drawn. (The decision is misdated January 19, 2017, on the first page, but

correctly dated on page 11.)

4 Pursuant to § 42-133dd (b) (1), the protest provisions of § 42-133dd (a)

do not apply to ‘‘the relocation of an existing dealer within that dealer’s

area of responsibility under its franchise, provided that the relocation shall

not be at a site within six miles of a licensed dealer for the same line make

of motor vehicle . . . .’’

Mitchell’s proposed relocation was within its area of responsibility and

was more than six miles from the protesting CDJR dealers.

5 General Statutes § 4-183 (j) sets out the statutory scope of review for
administrative appeals. It provides: ‘‘The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions

of fact. The court shall affirm the decision of the agency unless the court

finds that substantial rights of the person appealing have been prejudiced

because the administrative findings, inferences, conclusions, or decisions

are: (1) In violation of constitutional or statutory provisions; (2) in excess

of the statutory authority of the agency; (3) made upon unlawful procedure;

(4) affected by other error of law; (5) clearly erroneous in view of the

reliable, probative, and substantial evidence on the whole record; or (6)

arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion. If the court finds such prejudice, it

shall sustain the appeal and, if appropriate, may render a judgment under

subsection (k) of this section or remand the case for further proceedings.

For purposes of this section, a remand is a final judgment.’’

6 FCA’s national head of market representation, Bashar Cholagh, testified

that the June, 2014 analysis was a preliminary study, based primarily on

data from 2013, and the August, 2014 study was updated to reflect data

through April and May of 2014, as well as insights gained from driving the

market area in July, 2014. Notably, the June, 2014 study identified lost sales

opportunities in the Hartford market area and recommended putting a CDJR

dealership in the Simsbury trade zone. See Exhibit R2, Bates Stamp 9656.

The June, 2014 study also included a trade zone map that indicated the

importance of locating CDJR dealerships in auto rows near their main

competitors. Id., Bates Stamp 9686.