***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning 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 Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
B. SHAWN MCLOUGHLIN ET AL. v. PLANNING
AND ZONING COMMISSION OF THE
TOWN OF BETHEL
(SC 20541)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiffs appealed to the trial court from the decision of the defendant
planning and zoning commission, which had denied their application
for a special permit to construct a crematory on property owned by
one of the plaintiffs in a business park in the town of Bethel. The
property is located in a business park in one of the town’s two industrial
zones. Prior to submitting 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 indus-
trial zones. The commission approved the text amendment, and the
plaintiffs submitted their special permit application and an application
to construct and operate a crematory on the property. After public
hearings, the commission voted to deny both the plaintiffs’ special permit
application and their application to construct and operate a crematory.
The commission reasoned that the plaintiffs had failed to meet their
burden of demonstrating that their application satisfied the general
standards for special permits set forth in the relevant provision (§ 8.5.E)
of the town’s zoning regulations. Relying on the Appellate Court’s deci-
sion in St. Joseph’s High School, Inc. v. Planning & Zoning Commission
(176 Conn. App. 570), the trial court dismissed the plaintiffs’ appeal,
concluding that there was substantial evidence in the record to support
the commission’s denial of the plaintiffs’ special permit application based
on the general criteria for special permits set forth in § 8.5.E. The plain-
tiffs, on the granting of certification, appealed to the Appellate Court,
which affirmed the trial court’s judgment. On the granting of certifica-
tion, the plaintiffs appealed to this court. Held:
1. The plaintiffs could not prevail on their claim that the Appellate Court
misinterpreted and improperly expanded its holding in St. Joseph’s High
School, Inc.: the Appellate Court’s holding in St. Joseph’s High School,
Inc., that a planning and zoning commission may deny an application
for a special permit on the basis of generalized considerations but must
rely on specific evidence that relates directly to the site under consider-
ation was consistent with this court’s precedent requiring that the review
of a a special permit application must involve a fact specific inquiry
related to the specific site proposed, and the Appellate Court correctly
concluded that the trial court reliance on that case was proper; moreover,
this court declined the plaintiffs’ request to impose a rebuttable presump-
tion that a specially permitted use in a zoning district is compatible with
other uses in the district, as the particularized, fact intensive scrutiny
the plaintiffs proposed is embedded in the existing standard.
2. The Appellate Court incorrectly concluded that the commission’s denial
of the plaintiffs’ special permit application was supported by substantial
evidence, as the reasons enumerated by the commission for denying
the application were not supported by site specific facts that pertained
to the considerations enumerated in § 8.5.E of the town regulations but,
rather, were grounded in facts regarding crematory operations generally,
development decisions motivated by general objections, and evidence
not pertinent to the required considerations, and, accordingly, this court
reversed the Appellate Court’s judgment and directed that court to
reverse the trial court’s judgment and to remand the case with direction
to sustain the plaintiffs’ appeal and to order the commission to approve
the plaintiffs’ special permit application:
a. There was not substantial evidence of adverse environmental effects
on which to deny the plaintiffs’ application; the evidence and data pur-
portedly demonstrating adverse environmental effects were not specific
to the site of the proposed crematory or did not address the mode of
operation proposed for the plaintiffs’ crematory, and the only environ-
mental evidence specific to the plaintiffs’ proposed facility indicated that
it would not likely have an adverse environmental effect.
b. There was not substantial evidence that the proposed crematory would
have a detrimental effect on neighboring properties and residences or
the development of the district: in the absence of specific evidence
that the proposed crematory negatively affected neighboring properties,
various testimony elicited at the public hearings, including that of the
president of a company located on property abutting the plaintiffs’ prop-
erty, that a crematory in the business park would place the park at a
competitive disadvantage, decrease property values, and cause property
and business owners to sell their properties, rethink expansion plans,
or leave town, amounted to mere speculation, and those generalized
concerns did not rise to the level of substantial evidence of adverse
economic impact sufficient to support the commission’s denial of the
plaintiffs’ special permit application; moreover, testimony from neigh-
boring property owners that they would not have purchased their respec-
tive properties if they had known about the proposed crematory, and
testimony from the owner of several properties in the business park that
he had listed those properties for sale as a result of his emotional and
psychological opposition to the crematory, reflected speculative con-
cerns and a generalized ‘‘not in my backyard’’ objection that could not,
by itself, serve as substantial evidence for denying the plaintiffs’ special
permit application.
c. There was not substantial evidence to support the commission’s deter-
mination that the proposed crematory did not comply with the town
regulations because it would require an excessive amount of excavation
and fill activity and would have a negative effect on commercial business:
although the topography of the site required the plaintiffs to obtain an
excavation and fill permit, the commission did not cite to any evidence,
such as particular standards or measurements, to support its determina-
tion that the excavation and fill activity was excessive, and the fact that
the plaintiffs originally preferred to locate the crematory in an existing
building instead of constructing a new building was not relevant to the
suitability of the location that was ultimately proposed; moreover, the
commission did not cite to any evidence on which it relied in determining
that businesses may have a decreased ability to attract and to retain
customers, and a review of the record revealed no such evidence.
d. There was not substantial evidence to support the commission’s con-
clusion that the proposed crematory did not comply with the general
standards in the town regulations because of the plaintiffs’ inability to
screen the crematory from the view of neighboring properties; the evi-
dence on which the commission relied, namely, testimony from individu-
als objecting to viewing or being exposed to the crematory and a study
on the effect of a crematory on residential housing sales in a town in
Wyoming, did not constitute substantial evidence insofar as the study
was not specific to the site of the proposed crematory and in light of
the absence of evidence as to how the proposed facility would be so
stylistically inconsistent with the remainder of the business park as to
affect property values.
Argued September 17, 2021—officially released April 5, 2022
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 Connecticut Coining, Inc.,
was permitted to intervene as a defendant; thereafter,
the case was tried to the court, Hon. Marshall K. Berger,
Jr., judge trial referee, who, exercising the powers of
the Superior Court, rendered judgment dismissing the
appeal, from which the plaintiffs, on the granting of
certification, appealed to the Appellate Court, Keller,
Prescott and Devlin, Js., which affirmed the trial court’s
judgment, and the plaintiffs, on the granting of certifica-
tion, appealed to this court. Reversed; judgment directed.
Daniel E. Casagrande, with whom was Joseph Mor-
telliti, for the appellants (plaintiffs).
Charles R. Andres, for the appellee (defendant).
Opinion
ROBINSON, C. J. The principal issue in this certified
appeal is whether the Appellate Court’s decision in St.
Joseph’s High School, Inc. v. Planning & Zoning Com-
mission, 176 Conn. App. 570, 170 A.3d 73 (2017) (St.
Joseph’s), allows a zoning commission to deny an appli-
cation for a special use permit based on the applicant’s
noncompliance with the general standards enumerated
in the zoning regulations, despite its full compliance
with the technical requirements contained therein. The
plaintiffs, B. Shawn McLoughlin and Mono-Crete Step
Co. of CT, LLC (Mono-Crete), appeal, upon our grant
of their petition for certification,1 from the judgment
of the Appellate Court, which affirmed the trial court’s
dismissal of their appeal from the decision of the defen-
dant, the Planning and Zoning Commission of the Town
of Bethel (commission), to deny their application for a
special permit to construct a crematory on their prop-
erty.2 See McLoughlin v. Planning & Zoning Commis-
sion, 200 Conn. App. 307, 309, 334, 240 A.3d 709 (2020).
On appeal, the plaintiffs claim that the Appellate Court
(1) improperly interpreted its decision in St. Joseph’s
to allow nonspecific objections to the crematory based
on the general standards contained in the zoning regula-
tions to serve as a basis for the denial of their applica-
tion, and (2) incorrectly concluded that the commission’s
denial of their application was supported by substantial
evidence. Although we conclude that the Appellate Court
correctly determined that the precedent set by its hold-
ing in St. Joseph’s permits objections based on the gen-
eral standards in the zoning regulations to serve as the
basis for the denial of a special permit application, we
nevertheless agree with the plaintiffs’ argument that
the commission’s denial of their application was not
supported by substantial evidence. Accordingly, we
reverse the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history, aptly set forth by the Appellate
Court. ‘‘McLoughlin owns property located at 12 Trow-
bridge Drive (property) in the Clarke Business Park
(park) in [the town of] Bethel [town]. The park is
located in one of the town’s two industrial zones. Mono-
Crete, of which McLoughlin is the sole member, oper-
ates a business on the property. Mono-Crete produces
precast concrete, which is used to make items such as
burial vaults.
‘‘Because Mono-Crete’s business was declining and
the number of cremations in the United States was
increasing, McLoughlin decided to seek approval to
operate a crematory on the property. In furtherance of
that goal, the plaintiffs proposed a text amendment to
the Bethel Zoning Regulations (regulations) that would
make the operation of a crematory a specially permitted
use within either of the two industrial zones in the town.
Prior to the commission’s voting on the proposed text
amendment, the plaintiffs’ counsel acknowledged, at
two separate meetings of the commission, that the com-
mission’s decision on whether to approve the proposed
text amendment and any future special permit applica-
tion seeking site plan approval were mutually exclusive
inquiries, each involving unique considerations.
‘‘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. The
commission also noted that ‘the proposed text amend-
ment is . . . a reasonable request . . . in character
with the uses in the [i]ndustrial [zone].’
‘‘After the commission approved the July, 2014 text
amendment, the plaintiffs submitted a special permit
application but withdrew it in January, 2015. The plain-
tiffs then resubmitted their application on February 25,
2015. On May 7, 2015, the plaintiffs submitted to the
commission an application to construct and operate a
crematory as required by General Statutes § 19a-320.
‘‘Prior to the plaintiffs’ resubmission of their special
permit application, Connecticut Coining, Inc. (Connect-
icut Coining), on February 12, 2015, submitted an appli-
cation for a text amendment to the commission. The
proposed amendment would, in effect, repeal the July,
2014 text amendment and impose a one year morato-
rium on the commission’s entertaining applications for
and permitting the construction of crematories in the
town. At its May 12, 2015 meeting, the commission voted
to adopt this amendment (May, 2015 amendment) by a
four to three vote.3 The plaintiffs then appealed [from]
the commission’s adoption of the May, 2015 amendment
to the Superior Court.
‘‘On June 17, 2015, Connecticut Coining filed an appli-
cation for a new text amendment that purportedly
sought to correct a procedural defect noted by the plain-
tiffs in their appeal [from] the May, 2015 text amend-
ment (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.
‘‘Despite its repeal of the July, 2014 text amendment,
the commission, nevertheless, continued to deliberate
on the plaintiffs’ application. After holding four public
hearings on the plaintiffs’ application, the commission,
at its September 8, 2015 deliberative session, voted to
deny it by a four to three vote. Three of the four mem-
bers who voted to approve the July, 2014 text amend-
ment also voted to approve the plaintiffs’ application.
Meanwhile, the three members who voted against the
July, 2014 text amendment also voted against the plain-
tiffs’ application. The chairperson of the commission,
however, voted to approve the July, 2014 text amend-
ment but voted to deny the plaintiffs’ application. After
voting to deny the plaintiffs’ application, the commis-
sion, by the same margin, later voted to deny their
application to construct and operate a crematory pursu-
ant to § 19a-320.
‘‘At its September 22, 2015 meeting, the commission
presented its formal resolution of denial of the plaintiffs’
application . . . in which it set forth its reasoning for
denying the plaintiffs’ application. The commission gen-
erally found that ‘[t]he [plaintiffs] ha[ve] not demon-
strated that the proposed use in the proposed location
will not cause harmful health effects to neighboring
properties or their occupants and ha[ve] not demon-
strated that the use will not cause a loss in value of
property or economic development potential.’ Specifi-
cally, the commission stated that the plaintiffs failed to
meet their burden of demonstrating that their applica-
tion satisfied the criteria for special permits set forth in
§§ 8.5.E.2, 8.5.E.3, 8.5.E.4, and 8.5.E.5 of the regulations.
The plaintiffs filed an appeal from that decision with
the Superior Court on October 13, 2015.’’ (Footnote
added; footnotes omitted.) McLoughlin v. Planning &
Zoning Commission, supra, 200 Conn. App. 309–14.
Relying on St. Joseph’s High School, Inc. v. Planning
& Zoning Commission, supra, 176 Conn. App. 570, the
trial court rendered judgment dismissing the plaintiffs’
appeal, concluding that there was substantial evidence
in the record to support the commission’s denial of the
application based on the general criteria for special
permits set forth in §§ 8.5.E.3, 8.5.E.4 and 8.5.E.5 of the
regulations. Subsequently, the Appellate Court granted
the plaintiffs’ petition for certification to appeal from
the judgment of the trial court. See General Statutes
§ 8-8 (o).
On appeal, the Appellate Court determined that the
trial court (1) properly relied on its holding in St.
Joseph’s in concluding that a zoning commission may
deny a special permit application on the basis of general
standards set forth in the zoning regulations; see
McLoughlin v. Planning & Zoning Commission, supra,
200 Conn. App. 322; and (2) correctly concluded that
there was substantial evidence on which the commis-
sion based its determination that the plaintiffs had failed
to meet their burden of demonstrating that their applica-
tion satisfied §§ 8.5.E.3 and 8.5.E.4 of the regulations.
See id., 327. Accordingly, the Appellate Court affirmed
the judgment of the trial court. Id., 334. This certified
appeal followed. See footnote 1 of this opinion.
On appeal to this court, the plaintiffs claim that the
Appellate Court (1) improperly expanded St. Joseph’s
and the discretion a zoning commission has to deny a
special permit application by crediting general objec-
tions and evidence not specific to the proposed site, and
(2) incorrectly determined that no substantial evidence
supported the commission’s denial of the plaintiffs’ spe-
cial permit application. We address each claim in turn,
setting forth additional relevant facts and procedural
history as necessary.
Providing context for our review of the plaintiffs’ claims
in this certified appeal, we note that ‘‘the goal of an
application for a special [permit] 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.’’
(Internal quotation marks omitted.) Municipal Fund-
ing, LLC v. Zoning Board of Appeals, 270 Conn. 447,
454, 853 A.2d 511 (2004). ‘‘The rationale for special
permits or special exceptions4 is that [although] certain
uses are generally compatible with uses permitted as of
right in particular zoning districts, their precise location
and mode of operation must be regulated [by the special
permit process] because of topography, traffic prob-
lems, neighboring uses, etc. of the site.’’ (Footnote added.)
R. Fuller, 9 Connecticut Practice Series: Land Use Law
and Practice (4th Ed. 2015) § 5:1, p. 191. The special
permit approval function may be delegated to a zoning
commission, planning commission, or a zoning board
of appeals, and, ‘‘[i]n order for [that] administrative
agency to approve a special permit, it must determine
that (1) the proposed use of the property is expressly
permitted under the zoning regulations, (2) the stan-
dards in the regulations are satisfied, (3) any conditions
necessary to protect public health, safety, convenience,
and property values as provided by General Statutes
§ 8-2 can be established.’’ Id., p. 192.
I
We begin with the plaintiffs’ claim that the Appellate
Court both misinterpreted and expanded the holding
in St. Joseph’s High School, Inc. v. Planning & Zoning
Commission, supra, 176 Conn. App. 570. By way of
background, we note that, in resolving the present case,
the Appellate Court stated: ‘‘[The trial 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
[the Appellate] [C]ourt said in St. Joseph’s about general
standards predicating a commission’s denial of a special
permit application, the [trial] court concluded that it
was compelled to uphold the commission’s denial of the
plaintiffs’ application because the commission ‘based [its
decision on] 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.’ . . . Thus, [the Appellate Court] conclude[d]
that the [trial] court properly relied on [its] decision in
St. Joseph’s.’’ (Emphasis in original.) McLoughlin v.
Planning & Zoning Commission, supra, 200 Conn.
App. 322.
The plaintiffs contend that the Appellate Court improp-
erly applied St. Joseph’s because the facts in the present
case are distinguishable in that the evidence supporting
the commission’s denial was not grounded on a fact
based inquiry into the proposed use of the exact prop-
erty at issue. They also ask us to impose a rebuttable
presumption that, if a particular use is designated as a
specially permitted use in a zoning district, then it is
compatible with other uses in the district. In response,
the commission argues that the plaintiffs’ argument is
not a critique of the Appellate Court’s reliance on its
decision in St. Joseph’s but, instead, is meritless opposi-
tion to the general objections made to the commission
and considered as substantial evidence in the Appellate
Court’s analysis. It also contends that creating a new
legal standard incorporating a rebuttable presumption
is both unnecessary and a modification better suited for
legislative consideration. Although the Appellate Court
correctly concluded that the trial court properly relied
on St. Joseph’s, we agree with the plaintiffs that it
improperly disregarded the significance of the factual,
site specific testimony offered in that case. We also
conclude, however, that it is not necessary to adopt the
rebuttable presumption urged by the plaintiffs.
Whether the Appellate Court properly followed and
applied the legal principles it articulated in St. Joseph’s
is a question of law, over which we exercise plenary
review. See, e.g., Gerlt v. Planning & Zoning Commis-
sion, 290 Conn. 300, 311, 963 A.2d 24 (2009).
In St. Joseph’s High School, Inc. v. Planning & Zon-
ing Commission, supra, 176 Conn. App. 574, the Appel-
late Court reviewed a planning and zoning commission’s
denial of a special permit application to install four
light poles to illuminate the athletic field at the plaintiff
school. The defendants argued that the trial court incor-
rectly concluded that the planning and zoning commis-
sion was not permitted to deny the application based
on noncompliance with general standards contained in
the zoning regulations.5 Id., 572. To determine whether
the denial was proper, the Appellate Court canvassed
our prior opinions and concluded that, ‘‘[u]nder Con-
necticut law, a zoning commission may deny a special
permit application due to noncompliance with general
standards contained in the zoning regulations.’’ Id., 599.
The Appellate Court stated: ‘‘The exercise of [the plan-
ning and zoning commission’s] discretion ‘is inherently
[fact specific], requiring an examination of the particu-
lar circumstances of the precise site for which the spe-
cial permit is sought and the characteristics of the
specific neighborhood in which the proposed [use] would
[be made].’ ’’ (Emphasis added.) Id., 600. Applying that
standard, the Appellate Court then determined that the
planning and zoning commission’s decision to deny the
special permit application in St. Joseph’s was supported
by substantial evidence because of the testimony regard-
ing (1) current experiences with the school’s noise emis-
sions; see id., 603–607; (2) the temporary nature of the
wooded buffers between the light poles and the neigh-
boring properties; see id., 607–608; and (3) personal
experiences with loitering following sporting events at
the school. See id., 609–15.
The Appellate Court’s holding in St. Joseph’s thus
permits a zoning commission to deny an application
for a special permit based on generalized considerations
but, at the same time, requires specific evidence that
relates directly to the site under consideration. Requir-
ing site specific evidence is consistent with previous
decisions from this court in the special permit context.
For example, in Cambodian Buddhist Society of Con-
necticut, Inc. v. Planning & Zoning Commission, 285
Conn. 381, 439–446, 941 A.2d 868 (2008), this court
upheld a planning and zoning commission’s denial of
a religious society’s application for a special exception
to build a temple on its property based on evidence of
(1) large attendance at the society’s previous events on
the property, (2) the effect of the society’s past activities
on neighboring properties, and (3) the failure of the
society to obtain approval of its proposed septic and
water supply systems. Similarly, in Municipal Funding,
LLC v. Zoning Board of Appeals, supra, 270 Conn. 455–
56, this court upheld a zoning board’s denial of an appli-
cation for a special exception to open a residential
treatment facility based on the facts that the proposal
(1) did not include a security force, (2) did not include
any intention to secure its doors with locks, and (3)
would have up to 125 residents supervised by only
twenty staff members at a time. The court concluded
that those facts constituted substantial evidence on
which the board could have based its conclusion that
the facility posed a safety threat.6 Id., 456. Thus, the
type of evidence deemed legally sufficient by this court
in the aforementioned cases consisted of facts specific
to the relevant sites and pertinent to the required
review.7
These precedents establish ‘‘that the special permit
process is, in fact, discretionary’’ and ‘‘that general con-
siderations such as public health, safety and welfare,
which are enumerated in zoning regulations, may be
the basis for the denial of a special permit.’’ Irwin v.
Planning & Zoning Commission, 244 Conn. 619, 626–
27, 711 A.2d 675 (1998); see Whisper Wind Development
Corp. v. Planning & Zoning Commission, 32 Conn.
App. 515, 522, 630 A.2d 108 (1993) (rejecting plaintiff’s
argument that ‘‘the general health, safety and welfare
requirements contained in the [zoning] regulations must
be considered only for the purpose of placing conditions
on a special permit and may not be considered in
determining whether to deny or grant the permit’’), aff’d,
229 Conn. 176, 640 A.2d 100 (1994). These cases also
establish, however, that review of a special permit appli-
cation must still be a fact specific inquiry related to the
precise site proposed. See Municipal Funding, LLC v.
Zoning Board of Appeals, supra, 270 Conn. 457. Put
differently, although the considerations relevant to
review of a special permit application can be general,
the evidence bearing on those considerations cannot be.
We do, however, agree with the commission that we
need not modify the standard set forth in St. Joseph’s
High School, Inc. v. Planning & Zoning Commission,
supra, 176 Conn. 599–600, as the plaintiffs suggest in
asking us to impose a rebuttable presumption that spe-
cially permitted uses are compatible with other uses in
the district. That modification is not necessary because
the plaintiffs’ proposed standard of determining ‘‘whether
the evidence in support of denial is based on a fact
intensive scrutiny . . . into whether the ‘particular’
application . . . would be compatible with the ‘partic-
ular’ surrounding neighborhood’’ is embedded in the
existing standard. (Emphasis in original.) Unless judi-
cial review8 reveals substantial evidence to support
such a particularized finding, then nonparticularized,
general objections will be an insufficient basis for
upholding a zoning commission’s denial of a special
permit application. See Samperi v. Inland Wetlands
Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993) (plain-
tiff meets burden in appeal by establishing ‘‘that sub-
stantial evidence does not exist in the record as a whole
to support the agency’s decision’’).
Having concluded that the Appellate Court’s holding
in St. Joseph’s allows a zoning commission to deny a
special use permit based on facts specific to the pro-
posed site that indicate incompatibility with general
standards, we now turn to the commission’s decision
to deny the plaintiffs’ application in the present case.
II
The plaintiffs next claim that the commission’s deci-
sion was not supported by substantial evidence because
general objections, objections based on mere visibility,
and evidence not particular to the proposed site are
improper bases for denying a special permit application.
In response, the commission argues that there was sub-
stantial evidence in the record on which it based its
denial of the plaintiffs’ application because (1) the evi-
dence in the record was, in fact, specific to the proposed
use and location, and (2) ‘‘real human concerns’’ should
not be discredited as mere speculation. Addressing each
of these reasons in turn, we agree with the plaintiffs
and conclude that the commission’s decision was not
supported by substantial evidence.
The applicable standard of review is well established.
‘‘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] sup-
ports the decision reached.’’ (Internal quotation marks
omitted.) Municipal Funding, LLC v. Zoning Board of
Appeals, supra, 270 Conn. 453. ‘‘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 dis-
closes evidence that supports any one of the reasons
given.’’ (Internal quotation marks omitted.) Cambodian
Buddhist Society of Connecticut, Inc. v. Planning &
Zoning Commission, supra, 285 Conn. 427; see, e.g.,
Caruso v. Zoning Board of Appeals, 320 Conn. 315, 321,
130 A.3d 241 (2016).
‘‘The substantial evidence rule is similar to the suffi-
ciency of the evidence standard applied in judicial
review of jury verdicts, and evidence is sufficient to
sustain an agency finding if it affords a substantial basis
of fact from which the fact in issue can be reasonably
inferred. It must be enough to justify, if the trial were to
a jury, a refusal to direct a verdict when the conclusion
sought to be drawn from it is one of fact for the jury.’’
(Internal quotation marks omitted.) Clifford v. Plan-
ning & Zoning Commission, 280 Conn. 434, 452, 908
A.2d 1049 (2006). When a zoning commission has stated
a reason for denying a special permit application, as
the commission in the present case has done, ‘‘the ques-
tion for the court to pass on is simply whether the
reasons assigned are reasonably supported by the
record and whether they are pertinent to the considera-
tions [that] the commission is required to apply under
the zoning regulations.’’ (Internal quotation marks omit-
ted.) Irwin v. Planning & Zoning Commission, supra,
244 Conn. 629. In other words, we must uphold the
decision of the commission if the record reveals that
any one of its reasons for denying the special permit
application is supported by facts that are specific to
the proposed site and that pertain to the considerations
enumerated in the regulations. Having set forth the
proper standard, we address each of the commission’s
reasons as they relate to each of the relevant regu-
lations.
A
With respect to the commission’s conclusion that the
plaintiffs’ proposed crematory did not comply with
§ 8.5.E.29 of the regulations because of the potential
adverse effects caused by emissions released into the
environment, the trial court determined that the cited
evidence reflected nothing more substantial than ‘‘ ‘mere
worries and concerns.’ ’’ We agree and hold that there
was not substantial evidence of adverse environmental
effects on which to deny the plaintiffs’ application.
In determining that the plaintiffs failed to meet the
criteria set forth in § 8.5.E.2 of the regulations, the com-
mission stated that it ‘‘heard expert testimony and was
provided studies, data and analyses [that] contradicted
the [plaintiffs’] testimony. The analyses uncovered flaws
in the methods used and revealed discrepancies in the
data and outcomes presented by the [plaintiffs] and
concluded that emissions released into the atmosphere
from the crematory facility can and will in fact carry
several hazardous toxins at levels above allowable stan-
dards . . . .’’ During the commission’s May 12, 2015
public hearing on the special permit application, Mitch-
ell Gross, an engineering expert and neighboring prop-
erty owner, testified that ‘‘burning bodies and burning
bodies that are embalmed produces great amounts of
dioxin and furans. . . . [And] the subtle thing about
dioxins is you don’t smell them. They just give you
cancer.’’ Mitchell Gross referenced various studies and
data in support of his testimony, although none of this
information was site specific. For example, he dis-
cussed a 2010 journal article that described the effect
of crematory operations on residential house sales in
Rawlins, Wyoming, showed cadmium emissions exceeding
the allowable limit under applicable environmental
standards by 205 percent, and showed dioxin and furan
emissions exceeding the allowable limit by 2200 per-
cent. See M. Agee & T. Crocker, ‘‘Directional Heteroge-
neity of Environmental Disamenities: The Impact of
Crematory Operations on Adjacent Residential Values,’’
42 Applied Economics 1735, 1738–39 (2010) (Rawlins
study). The Rawlins study, like the other studies men-
tioned in Mitchell Gross’ testimony, was not specific to
the facility or site proposed and did not address the
mode of operation proposed for this particular crema-
tory facility. See Municipal Funding, LLC v. Zoning
Board of Appeals, supra, 270 Conn. 457 (‘‘[r]eview 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]’’). Because
the commission’s determination that the plaintiffs’
application did not comply with § 8.5.E.2 of the regula-
tions is not supported by evidence pertaining to the
particular circumstances of the precise site proposed,
we conclude that this determination was not supported
by substantial evidence.
Cambodian Buddhist Society of Connecticut, Inc. v.
Planning & Zoning Commission, supra, 285 Conn. 381,
provides an example of evidence that would have suf-
ficed in supporting the commission’s denial. Following
testimony from an engineer that the proposed septic
system would have no impact on neighboring proper-
ties, another engineer and an ecological consultant tes-
tified that the proposed septic system did not appear to
comply with state requirements and would not function
properly as designed. Id., 444. We cited to this evidence
in concluding that there was substantial evidence to
support the determination of the planning and zoning
commission in that case that the proposed use did not
comply with the relevant general consideration. Id., 446.
Indeed, the only site specific environmental evidence
in the present case indicated that there were no likely
adverse environmental effects. The Director of Health
of the town’s health department submitted a letter, read
into the record at the April 14, 2015 public hearing,
stating that Department of Public Health toxicologists
advised that, ‘‘if a small source such as this proposal
follows the requirements of its [Department of Energy
and Environmental Protection] permit, there should not
be significant air quality issues.’’ (Emphasis added.) The
letter also stated that, after reviewing the plaintiffs’
application and proposed plans, the town’s health
department had no objection to the application, so long
as the commission attached conditions to its approval
to ensure that the state environmental and public health
permit requirements and approvals were met and main-
tained. Unlike in Cambodian Buddhist Society of Con-
necticut, Inc., there was no expert testimony in the
present case that reviewed the plaintiffs’ proposal and
explained why the proposal did, in fact, present air
quality issues out of compliance with the state environ-
mental and public health permitting requirements.10
B
We next address the commission’s conclusion that
the proposed crematory did not comply with § 8.5.E.311
of the regulations because it would have a detrimental
effect on the neighboring properties and residences, as
well as the development of the district. We hold that
there was not substantial evidence in the record sup-
porting this reason for the commission’s denial of the
plaintiffs’ special permit application. The commission
cites to a great deal of evidence in support of its determi-
nation that the plaintiffs’ application did not satisfy this
regulation, and we will assess each item in turn to
determine if it is, in fact, the substantial evidence neces-
sary to support its decision during judicial review. Addi-
tional facts and procedural history are set forth as
necessary.
1
The commission first cites to testimony from the
town’s Economic Development Commission (develop-
ment commission), positing that plans to expand the
park may be halted as a result of the crematory. The
development commission also claimed that there was
a concern about the potential reduced value of the park
properties, as well as the loss of marketability and via-
bility of land for development. The commission further
cites to testimony from the development commission
indicating that the crematory would put the park at a
competitive disadvantage in recruiting businesses.
In its March 24, 2014 letter to the commission, the
development commission stated that ‘‘[a] cremator[y]
may negatively impact [the development commission’s]
ability to attract commercial businesses. . . . A crema-
tor[y] in the park may discourage commercial business
investment in the expansion area. . . . A cremator[y]
in the park may discourage businesses from moving to
or expanding within the park. . . . Studies have shown
a crematory has a negative impact on surrounding home
values. . . . A cremator[y] may have a negative impact
on future development/ownership within the park.’’ In
reference to this letter, a member of the commission
stated at the April 22, 2014 public hearing on the plain-
tiffs’ text amendment that ‘‘there is no more general a
statement than that’’ and that the commission needed
‘‘proof and facts of how [the crematory is] going to
decrease economic activity . . . .’’ The development
commission did not cite any specific facts as a basis
for these conclusions. In the absence of actual facts,
the development commission’s letter amounted to mere
speculation that cannot provide support for the com-
mission’s decision. See, e.g., River Bend Associates,
Inc. v. Conservation & Inland Wetlands Commission,
269 Conn. 57, 71, 848 A.2d 395 (2004) (‘‘[e]vidence of
general environmental impacts, mere speculation, or
general concerns do not qualify as substantial evi-
dence’’). As the plaintiffs argue, a challenge to ‘‘allowing
a crematory anywhere in the . . . park may have been
appropriate in the commission’s legislative consider-
ation of the text amendment but had no proper place
in the site specific inquiry required for the special per-
mit application.’’
The development commission attempted to remedy
the speculative nature of its submission. On May 27,
2014, the commission held another public hearing, at
which Johnny Choi, the owner of several properties in
the park, testified that, if the crematory facility were
approved, he would put the fifteen properties he owns
in the town up for sale. On April 13, 2015, the town
development commission sent another letter to the
commission, stating that its ‘‘concerns recently became
a reality when a property owner in [the] [p]ark, [Johnny]
Choi . . . put all of his seven . . . properties (both
commercial and residential) on the market.’’ Based on
our review of the record, the development commis-
sion’s concerns remain generalized because, even in
light of the sale, there was no evidence that the pro-
posed crematory negatively affected those properties,
by, for example, diminishing their value. Thus, there
was nothing that actually rose to the level of substantial
evidence of adverse economic impact sufficient to sup-
port the commission’s denial of the special permit appli-
cation. See, e.g., Lord Family of Windsor, LLC v. Inland
Wetlands & Watercourses Commission, 103 Conn. App.
354, 363, 928 A.2d 1237 (2007) (‘‘[e]vidence of general
environmental impacts, mere speculation, or general
concerns’’ still do not qualify as substantial evidence
even when testified to by expert (internal quotation
marks omitted)), aff’d, 288 Conn. 669, 954 A.2d 133
(2008); see also River Bend Associates, Inc. v. Conser-
vation & Inland Wetlands Commission, supra, 269
Conn. 71 (same).
Finally, in its July 13, 2015 letter to the commission,
the development commission stated that it was ‘‘con-
cerned that the proposed location of the site would be
so close to the road that it would negatively impact
[its] ability to sell the additional lots for a fair price.’’
Again, the development commission did not cite to any
site specific studies, such as real estate appraisals, as
a basis for its concern that lots would not sell at a fair
price. Thus, none of the testimony from the develop-
ment commission amounts to substantial evidence of
the effect that the crematory would have on neighboring
property and development.
2
Next, the commission cites to testimony from Greg-
ory Marciano—the president and owner of the interven-
ing defendant, Connecticut Coining,12 which is located
on abutting property at 10 Trowbridge Drive—stating
that (1) the proposed crematory would be visible from
his property, (2) the proposed crematory would nega-
tively affect his ability to retain employees, (3) he may
rethink expanding his business, and (4) the approval
of the crematory could influence his decision to leave
the town.
At the commission’s April 14, 2015 public hearing,
Marciano testified that, regardless of whether his
employees’ concerns are real or perceived, he could lose
them because of their perception of crematory opera-
tions, and that he might have to leave the town if that
loss came to pass. At the July 15, 2015 public hearing,
Attorney Neil Marcus, testifying on behalf of Marciano,
reiterated that, if Connecticut Coining’s employeeshave
a problem being next to a crematory, then Marciano
will not look to expand his business in the town and
may have to relocate when it comes time to expand.
Marciano’s testimony was grounded in speculative
concerns regarding his ability to retain employees, which
does not, by itself, amount to substantial evidence. Had
Marciano’s concerns, or those of his employees, been
based on a factual inquiry of the effects of the facility
at the proposed site, rather than general objections to
the crematory, his testimony might have sufficed as fact
based and site specific evidence. As we have discussed,
general concerns, speculation, and mere worry, without
more, do not qualify as substantial evidence. See River
Bend Associates, Inc. v. Conservation & Inland Wet-
lands Commission, supra, 269 Conn. 71; see also Amer-
ican Institute for Neuro-Integrative Development, Inc.
v. Town Plan & Zoning Commission, 189 Conn. App.
332, 349, 207 A.3d 1053 (2019) (‘‘public testimony is not
to be considered substantial evidence when it is not
supported by anything other than speculation and con-
jecture on the part of those objecting to the [party’s]
proposed activities’’ (internal quotation marks omit-
ted)); Lord Family of Windsor, LLC v. Inland Wet-
lands & Watercourses Commission, supra, 103 Conn.
App. 365 (‘‘[a] mere worry is not substantial evidence’’).
And, if the commission cannot base its conclusion on
general concerns, speculation, and mere worry, then it
cannot base its conclusion on community members’
business development decisions, potential or actual,
that are themselves reflections of concerns that are not
site specific, speculation, and mere worry. If we were
to hold otherwise, individual members of a community
would be able to block any special use permit applica-
tion by pausing current developments or even by mere
reference to hypothetical future intentions to do so
due to unsubstantiated fears about future events, an
approach that is wholly inconsistent with the obligation
of local land use authorities to exercise their authority
for the benefit of the community as a whole.13 Further,
citing such hypothetical intentions as substantial evi-
dence would render the statutory right of appeal from
the decision of local zoning authorities ineffectual, as
the courts cannot disturb the decision of a zoning com-
mission when evidence relevant to appropriate consid-
erations is present. See R. Fuller, 9A Connecticut
Practice Series: Land Use Law and Practice (4th Ed.
2015) § 34:3, p. 335. Put differently, Marciano’s general
concerns do not become substantial evidence at the
mere mention of a possible development decision.
Because the only reason testified to by both Marciano
and Marcus for the decision to rethink an expansion
and relocate was grounded in Marciano’s speculative
concerns as to his employees’ potentially abandoning
their employment—specifically on the basis of their
subjective perceptions of crematory operations—their
testimony cannot be considered substantial evidence as
to whether the proposed facility will have a detrimental
effect on the development of the district, as it is nothing
more than a general objection.
3
Next, the commission cites to testimony from Wendy
Gross and Mitchell Gross, the coowners of 13 Trow-
bridge Drive, that (1) they would not have purchased
their property had they known about the proposed cre-
matory, (2) the proposed facility was not disclosed to
them during their property negotiations, (3) they will
not invest in their property as intended, and (4) they
already placed one property up for sale.
At the April 14, 2015 hearing, Wendy Gross stated
that, if she and Mitchell Gross had known about the
proposed crematory, then they would not have pur-
chased the property at 13 Trowbridge Drive, and that
real estate agents’ failure to tell anyone about the pro-
posal evidences ‘‘how scared they are of the effect it’s
going to have on property values.’’ Mitchell Gross stated
in a letter to the commission that he had delayed
approximately $100,000 worth of planned construction
on the property. Finally, at the June 16, 2015 public
hearing, Mitchell Gross testified that he listed his prop-
erty for sale at $1.25 million, which was less than he paid
for it, even without accounting for the improvements
he had made to the building.
Wendy Gross’ testimony as to the potential effect on
property values is plainly speculative. Further, Wendy
Gross cited to religious issues, personal repercussions,
such as no longer being able to walk dogs in the park,
and speculative concerns as to employees feeling ‘‘very
upset and conflicted by [the proposed facility]’’ as the
basis for opposition to the proposed facility. Because
her declaration that she would not have purchased the
property had she known of the proposed crematory
was grounded in these speculative concerns, this testi-
mony is also nothing more than a general objection
accompanied by another hypothetical property deci-
sion. See footnote 13 of this opinion.
Moreover, if Mitchell Gross had sold his property at
a loss as a direct result of the proposed crematory, the
commission could have properly considered that as
evidence of the detrimental effect of the proposed cre-
matory. However, the record does not support that
claim. Mitchell Gross’ testimony was that ‘‘it cost [him]
more than $1.25 million to buy [the property], and [he
had] added improvements to the building . . . .’’
According to testimony from the plaintiffs’ counsel, the
warranty deed submitted into the record reflected that
Mitchell Gross purchased the property less than three
months prior for $1.075 million, and there is no evidence
as to the value of the improvements he made. Even if
the commission had credited testimony that Mitchell
Gross sold his property at a loss,14 there was no evidence
that any property values were negatively affected spe-
cifically as a result of the proposed crematory.
With respect to Mitchell Gross’ decision to stop invest-
ing in the property and to put it on the market, in
the absence of specific evidence about the detrimental
effects of the proposed facility, a generalized ‘‘not in my
backyard’’ (NIMBY)15 reaction cannot, by itself, serve
as substantial evidence for denying the plaintiffs’ appli-
cation, even if that reaction motivated his investment
and sale decisions.16 See, e.g., T-Mobile Central, LLC
v. West Bloomfield, 691 F.3d 794, 801 (6th Cir. 2012) (‘‘If
. . . these generalized objections sufficed, any wireless
facility could be rejected. Anyone who opposed a cell
tower in their backyard could offer an excuse that it
would be bad for the community, would not be aestheti-
cally pleasing, or would be otherwise objectionable.
But that by itself is not enough. There must be evidence.
And not just any evidence—evidence that is substan-
tial.’’ (Emphasis in original.)); Verizon Wireless (VAW),
LLC v. Board of County Commissioners, 544 F. Supp.
2d 1218, 1249 (D. Kan. 2008) (‘‘[s]uch generalized ‘not
in my backyard’ opposition does not, as a matter of
law, constitute substantial evidence on which to deny
a proposed wireless telecommunications facility on aes-
thetics grounds’’); Sprint Spectrum, L.P. v. St. Charles,
Docket No. 4:04CV1144 RWS, 2005 WL 1661496, *6 (E.D.
Mo. July 6, 2005) (‘‘None of the residents offered any
evidence in support of their opposition. A ‘not in my
backyard’ generalized objection does not constitute
substantial evidence to support the denial of a . . .
permit.’’ (Emphasis added.)). When Mitchell Gross
announced at the June 16, 2015 hearing that his business
put its property on the market, he plainly stated that
they ‘‘certainly don’t want [the crematory] in [their]
backyard,’’ which was one of many reactions evoking
NIMBY concerns during the public hearings on the
plaintiffs’ text amendment and special permit applica-
tion. Mitchell Gross did not present any facts specific
to the proposed site evidencing the detriment of the
proposed facility, only what would result from his oppo-
sition to the crematory, supported by generalized NIMBY
concerns. Members of the commission appeared to rec-
ognize this evidentiary gap during the April 14, 2015
hearing, when one commission member indicated the
need for evidence showing a detrimental effect on
neighboring properties, such as an appraisal showing
that a property next to the proposed facility would be
worth less.17 Accordingly, the testimony from Wendy
and Mitchell Gross does not constitute substantial evi-
dence of the proposed crematory’s detrimental effect
on surrounding properties or development.
4
Next, the commission cites to testimony from the
owner of seven properties in the park, stating that he
placed all seven up for sale and ceased expansion nego-
tiations. The testimony in the record most similar to
what the commission cites is that of Henry and Johnny
Choi at the May 27, 2014 hearing, in which Henry Choi
stated that they are ‘‘seriously considering’’ moving out
of the town. Later, Johnny Choi discussed a number of
business ventures he planned to bring to the town
before stating that, if the plaintiffs’ text amendment is
approved, he would put his properties up for sale
because he does not want his ‘‘business near any emo-
tion or psychological feelings . . . .’’
The testimony of Henry and Johnny Choi does not
constitute substantial evidence, insofar as it is simply
another NIMBY reaction that motivated their sale and
development decisions. Again, there is no factual and
site specific evidence that the proposed crematory had
a detrimental effect on surrounding properties and
development, only that Henry and Johnny Choi’s oppo-
sition to the proposal motivated their development deci-
sion. As we discussed, opposition, and the results of
such opposition, supported only by NIMBY sentiments
is not substantial evidence justifying the denial of a
special permit. Because Henry and Johnny Choi based
their investment decisions on their fear of perceived
emotions, rather than any factual concerns relating to
the proposed facility, the listing and potential sale of
their properties do not constitute substantial evidence.
5
Finally, the commission cites to testimony from John
Holbrook, the owner of an organic farm at 45 Turkey
Plain Road, who claimed that his organic designation
may be jeopardized by toxic particle emissions from
the proposed crematory. At the April 14, 2015 hearing,
Holbrook stated that the ‘‘threat of mercury poisoning
[would] kill [his] business in a New York minute.’’ At
the June 16, 2015 hearing, Holbrook also explained that
his farm is currently not certified as organic because
he does not ‘‘want the government coming [on] to [his]
property.’’ If he were ever forced to become certified,
he testified that he would not be able to because of the
‘‘dioxin, mercury and a number of other pollutants [on
his] land.’’ The record reveals no evidence to support
Holbrook’s concerns about the negative environmental
effect of the crematory on his organic farming opera-
tion. Indeed, had there been evidence that the proximity
of Holbrook’s farm to the proposed crematory would
actually inhibit the operation of the organic farm, then
this certainly would have been the type of testimony
that evidences a detrimental effect on development and
neighboring properties. But, on this record, not only is
it speculative that Holbrook’s land will be polluted by
the proposed crematory, it is speculative that he will
one day be mandated to have his farm certified as
organic, and it is entirely speculative that he would be
unable to do so because of the crematory operations. To
the extent that Holbrook’s testimony that the Northeast
Organic Farming Association of Connecticut will close
his farm if dioxins are present does confirm that Hol-
brook’s farm might one day be regulated, it still does
not confirm whether the proposed crematory will itself
result in dioxin emissions that negatively affect Hol-
brook’s farm. Thus, we conclude that Holbrook’s testi-
mony does not amount to substantial evidence and,
further, that the record as a whole reveals no substantial
evidence for the commission’s finding that the proposed
facility will have a detrimental effect on neighboring
properties and the development of the district.18
C
We next address the commission’s determination that
the proposed crematory did not comply with § 8.5.E.419
of the regulations because of the excavation and fill
activity the proposal requires and the potential effect
on the increasingly commercial businesses surrounding
the proposed location. We conclude that there is not
substantial evidence to support this conclusion.
At the commission’s April 22, 2014 meeting, the plain-
tiffs’ counsel stated that their preference was to locate
the crematory in their existing building but that the 500
foot requirement set forth in General Statutes § 8-2n20
precluded them from doing so. The proposed site, the
location of which complied with § 8-2n, contained mod-
erate to severe topography, rendering an excavation
and fill permit necessary to proceed with the develop-
ment. Accordingly, the commission determined that the
application did not comply with § 8.5.E.4 of the regula-
tions because (1) it required an excessive amount of
excavation and fill activity, as well as a series of
retaining walls for level access, (2) the plaintiffs’ coun-
sel had testified that the proposed site was not their
ideal location, and (3) the proposed use may affect the
ability of surrounding businesses to attract and retain
customers.
Although the record supports the necessity of excava-
tion and fill activity, along with the construction of
retaining walls, the commission does not cite to any
evidence on which it relied to determine that the activity
was excessive in nature. Although the commission states
that ‘‘[t]he grade must be lowered upwards of [eighteen]
feet in some locations,’’ our review of the record does
not reveal why, or by what standards, that particular
measurement renders the excavation and fill activity
excessive, or otherwise indicates a lack of suitability.
As to counsel’s testimony at the hearing, we fail to
see how the plaintiffs’ original preference to place the
crematory in their existing building rather than con-
structing a new building is at all relevant to whether
the location ultimately proposed is itself suitable for
the crematory. See Irwin v. Planning & Zoning Com-
mission, supra, 244 Conn. 629. The existing location
may be more desirable to the applicant, presumably
due to cost considerations, but it does not follow that
the proposed location is unsuitable.
Finally, the commission did not cite to any evidence
in the record on which it relied in determining that
businesses surrounding the proposed crematory may
have a decreased ability to attract and retain customers.
Our review of the record also reveals no such evidence.
Accordingly, we conclude that there is not sufficient
evidence in the record to support the commission’s
determination that the plaintiffs’ application did not
comply with § 8.5.E.4 of the regulations.21
D
Finally, we address the commission’s conclusion that
the proposed crematory did not comply with § 8.5.E.5
(a) and (b)22 of the regulations because of the plaintiffs’
inability to screen the crematory from the view of neigh-
boring properties, which the commission stated would
likely result in a decline in their value. We conclude
that there is not substantial evidence to support this
determination.
In support of its determination, the commission cited
to (1) testimony ‘‘from those who have expressed objec-
tion[s] to viewing or being exposed to the operation of
a crematory facility,’’ and (2) the Rawlins study. See
part II A of this opinion. In regard to the testimony,
we previously explained that general concerns do not
qualify as substantial evidence. See, e.g., American
Institute for Neuro-Integrative Development, Inc. v.
Town Plan & Zoning Commission, supra, 189 Conn.
App. 341; Lord Family of Windsor, LLC v. Inland Wet-
lands & Watercourses Commission, supra, 103 Conn.
App. 365. Thus, general objections to viewing or being
exposed to the proposed facility are not substantial
evidence. Without evidence as to how the proposed
facility is so stylistically inconsistent with the rest of
the park that it would have a detrimental effect on
property values therein, the fact that the proposed
building and smoke stacks would be visible from the
street does not support a finding that the proposed
crematory is not suitable in relation to the rest of the
park or that the visibility of that facility affects the value
of the neighboring properties. Cf. Mendonsa v. Corey,
495 A.2d 257, 259, 261 (R.I. 1985) (holding that there
was substantial evidence for zoning board of review to
deny special exception permit on basis of, inter alia,
testimony from qualified real estate expert that con-
struction of fifty-one townhouse units on less than ten
acres would increase density within neighborhood and
diminish value of neighboring single family homes).
Because there is no other evidence in the record to
support the commission’s determination that the plain-
tiffs’ application did not comply with § 8.5.E.5 (a) and
(b) of the regulations, insofar as the Rawlins study does
not examine the specific site proposed, we conclude
that there was no substantial evidence on which that
conclusion could have been based.23
In sum, the commission’s decision to deny the plain-
tiffs’ application for a special permit to construct a
crematory on its property was based only on general
facts regarding crematory operations not specific to
the proposed site, development decisions motivated by
general objections to the proposed facility, and evi-
dence not pertinent to the required considerations. The
record, therefore, does not reveal substantial evidence
on which the commission based its decision. Accord-
ingly, we conclude that the Appellate Court improperly
affirmed the judgment of the trial court. Instead, it
should have rendered judgment directing the trial court
to order the commission to approve the plaintiffs’ appli-
cation under terms and conditions reasonable and nec-
essary to protect the public, as permitted by § 8.5.F.4
(a)24 of the regulations. See Mobil Oil Corp. v. Zoning
Commission, 30 Conn. App. 816, 821, 622 A.2d 1035
(1993) (concluding that, if there is no basis for zoning
commission’s denial of special permit application, trial
court shall order commission to approve application).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court with direction to sustain the
plaintiffs’ appeal and to order the commission to approve
the plaintiffs’ application for a special permit.
In this opinion the other justices concurred.
1
We granted the plaintiffs’ petition for certification to appeal, limited to
the following issues: (1) ‘‘Did the Appellate Court correctly conclude that,
under St. Joseph’s High School, Inc. v. Planning & Zoning Commission,
[supra, 176 Conn. App. 570], a zoning commission can deny a special use
permit application based on noncompliance with the general standards
enumerated in the zoning regulations despite full compliance with the techni-
cal requirements?’’ And (2) ‘‘If the answer to the first question is in the
affirmative, did the Appellate Court correctly determine that substantial
evidence supported the decision of the defendant planning and zoning com-
mission to deny the plaintiffs’ special use permit application?’’ McLoughlin
v. Planning & Zoning Commission, 335 Conn. 978, 241 A.3d 131 (2020).
2
‘‘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.’’ McLoughlin v.
Planning & Zoning Commission, 200 Conn. App. 307, 309 n.1, 240 A.3d
709 (2020). We note that Connecticut Coining, Inc., filed a brief with and
participated at oral argument before the Appellate Court. See id. It has not,
however, filed a brief in this certified appeal. Accordingly, any references
herein to the defendant are to the commission.
3
The moratorium on crematory applications established by the May, 2015
amendment did not preclude the plaintiffs’ application from being consid-
ered. See General Statutes § 8-2h (a) (‘‘[a]n application filed with a . . .
planning and zoning commission . . . of a town . . . which is in confor-
mance 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 . . . taking effect after the
filing of such application’’). We note that the moratorium did not take effect
until May 12, 2015, which was subsequent to the plaintiffs’ resubmission of
a special permit application on February 25, 2015, and their submission of
an application to construct and operate a crematory on May 7, 2015.
4
‘‘The terms ‘special permit’ and ‘special exception’ have the same mean-
ing and can be used interchangeably.’’ R. Fuller, 9 Connecticut Practice
Series: Land Use Law and Practice (4th Ed. 2015) § 5:1, p. 191.
5
The general standard at issue in St. Joseph’s provided: ‘‘ ‘The location and
size of such [special permit] use, and the nature and intensity of operations
involved in or conducted in connection therewith, shall be such that both
pedestrian and vehicular traffic to and from and in the vicinity of the use
will not be hazardous or inconvenient to, or detrimental to the character
of the said residential district or conflict with the traffic characteristics of
the neighborhood. . . . Access, parking, service areas, lighting, signs and
landscaping shall be designed so as to protect the residential character of
surrounding residential neighborhoods or residential zones.’ ’’ St. Joseph’s
High School, Inc. v. Planning & Zoning Commission, supra, 176 Conn. 581
n.12. In contrast to the general standard, the technical requirements included,
inter alia, a maximum height for light poles, a minimum distance from
abutting residential property lines, and a photometric plan submission.
Id., 573.
6
Although this court’s decision in Municipal Funding, LLC does mention
the testimony of several neighbors who were fearful based on their personal
perceptions of the proposed facility, the court clarified that ‘‘there [neverthe-
less] was a sufficient factual basis in the record to support a determination
that a genuine threat to public safety had been demonstrated.’’ (Emphasis
added.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270
Conn. 456 n.7.
7
Relying on Irwin v. Planning & Zoning Commission, 244 Conn. 619,
626–27, 711 A.2d 675 (1998), among other cases, the commission argues
that requiring this type of site specific evidence precludes zoning commis-
sions from denying applications for entirely new special permit uses. The
commission’s reliance on Irwin is misplaced because the evidence credited
in that case was, inter alia, expert testimony as to the effect the proposed
use would have on the specific site proposed. See id., 632. Irwin provides
an example of the fact specific, site specific testimony necessary to uphold
the denial of a special permit application for a new use before the facility
is constructed.
Consistent with Irwin, we note that another example of proper evidence
for a new special permit use is the appraisal of properties neighboring the
specific site to demonstrate whether the proposed use would affect their
value, as the commission requested in the present case. See footnote 17 of
this opinion.
8
This standard is specific to judicial review, as the applicants’ burden
before the commission was to persuade the commission that the application
was compatible with the zoning regulations; see, e.g., Upjohn Co. v. Plan-
ning & Zoning Commission, 224 Conn. 82, 89, 616 A.2d 786 (1992); and,
as discussed subsequently in this opinion, the plaintiffs’ burden on appeal
is to establish that there is no substantial evidence in the record to support
the commission’s decision. See, e.g., Municipal Funding, LLC v. Zoning
Board of Appeals, supra, 270 Conn. 453; Samperi v. Inland Wetlands Agency,
226 Conn. 579, 587, 628 A.2d 1286 (1993).
9
Section 8.5.E.2 of the regulations requires the commission to evaluate
‘‘[w]hether appropriate consideration has been given to the protection, pres-
ervation, 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
There was testimony in the record that the plaintiffs’ ambient impact
analysis was incorrect but no testimony that a proper analysis was conducted
that evidenced environmental noncompliance.
11
Section 8.5.E.3 of the regulations requires the commission to consider
‘‘[w]hether the proposed use will have a detrimental effect on neighboring
properties and residences or the development of the district.’’
12
See footnote 2 of this opinion.
13
If a zoning commission credited this testimony, this court could not
disturb that credibility determination, even if it seemed clear to us that the
vow not to undergo expansion was an empty statement merely to derail an
application. See Municipal Funding, LLC v. Zoning Board of Appeals,
supra, 270 Conn. 453. Instead, because the commission cited this testimony
as a reason for its denial, we assume that the commission found this testi-
mony credible but nevertheless conclude that it does not constitute substan-
tial evidence as a matter of law. To conclude otherwise would be inconsistent
with the responsibility of local land use authorities, ‘‘[i]n exercising their
zoning powers . . . [to] act for the benefit of the community as a whole
following a calm and deliberate consideration of the alternatives, and not
because of the whims of either an articulate minority or even majority of
the community.’’ (Internal quotation marks omitted.) North Haven Opportu-
nity for Affordable Housing, Inc. v. Planning & Zoning Commission,
Docket No. CV-XX-XXXXXXX-S, 2016 WL 1578379, *4 n.7 (Conn. Super. February
25, 2016). As one leading authority has stated: ‘‘Discretionary development
review too often involves the ad hocery that . . . has [been] described as
trial by neighborism. . . . A zoning ordinance cannot permit administrative
officers or boards to pick and choose the recipients of their favors. One
would hope that courts would apply procedural due process protections to
local legislative zoning decisions on individual development applications
. . . . [T]oday the question largely remains of how to confine and structure
necessary discretionary power while providing for effective safeguards
against the abuse of discretion in the development review process.’’ (Foot-
notes omitted; internal quotation marks omitted.) 1 E. Ziegler, Rathkopf’s
The Law of Zoning and Planning (2011) § 11:4, pp. 11-10 through 11-11.
14
After citing to all of the public testimony on which it relied to determine
that the plaintiffs’ application did not comply with § 8.5.E.3 of the regulations,
the commission stated that it found the public testimony to be credible and
compelling evidence. Notably, Mitchell Gross’ testimony that he listed his
property for less than he paid for it was not among the testimony cited by
the commission.
15
‘‘ ‘NIMBY conflicts arise from projects that typically generate widely
dispersed benefits while imposing concentrated costs, such as homeless
shelters, prisons, airports, sports stadiums, and waste disposal sites. Despite
the social desirability of such projects, they often provoke intense local
resistance that harnesses the political process to block construction of the
proposed facility.’ ’’ Kennedy v. Zoning Hearing Board, 575 Pa. 105, 126
n.27, 834 A.2d 1104 (2003), quoting B. Richman, ‘‘Mandating Negotiations
to Solve the NIMBY Problem: A Creative Regulatory Response,’’ 20 UCLA J.
Environmental L. & Policy 223, 223 (2002). ‘‘ ‘[T]hey often deploy alternative
regulatory rationales, such as environmental impact statements, historic
districts, aboriginal burial sites, agricultural preservation, wetlands, flood
plains, access for the disabled and protection of (often unidentified) endan-
gered species at other local, state and federal government forums, including
courts of law.’ ’’ Kennedy v. Zoning Hearing Board, supra, 125 n. 27, quoting
W. Fischel, ‘‘Voting, Risk Aversion, and the NIMBY Syndrome: A Comment
on Robert Nelson’s ‘Privatizing the Neighborhood,’ ’’ 7 Geo. Mason L. Rev.
881, 882 (1999).
16
See footnotes 13 and 15 of this opinion.
17
The commission member stated: ‘‘[N]ot once did somebody put on this
desk, [as] part of the public record, some [evidence that a] real estate
appraiser said that my property is going to be worth less than it is next
door to a crematory. . . . [T]hey need to come up with a piece of paper
that says absolutely, here it is . . . it’s less.’’
18
In explaining why the plaintiffs did not satisfy § 8.5.E.3 of the regulations,
the commission also referenced the reason cited for why the plaintiffs did
not satisfy § 8.5.E.2 of the regulations. See part II A of this opinion. Because
we conclude in part II A of this opinion that that reason does not constitute
substantial evidence, we need not repeat that analysis here.
19
Section 8.5.E.4 of the regulations requires the commission to determine
‘‘[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.’’
20
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.
. . .’’
21
In explaining why the plaintiffs did not satisfy § 8.5.E.4 of the regulations,
the commission also referenced the reasons cited for why the plaintiffs did
not satisfy §§ 8.5.E.2 and 8.5.E.3. See parts II A and B of this opinion. In
light of our conclusion that those reasons are not supported by substantial
evidence, we need not repeat that analysis here.
22
Section 8.5.E.5 (a) of the regulations requires the commission to consider
‘‘[w]hether the design elements of the proposed development will be attrac-
tive and suitable in relation to 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.’’ Section 8.5.E.5 (b) of the
regulations requires the commission to consider ‘‘[w]hether 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.’’
23
In explaining why the plaintiffs did not satisfy § 8.5.E.5 (a) and (b) of
the regulations, the commission also referenced the reasons cited for why
the plaintiffs did not satisfy § 8.5.E.3. See part II B of this opinion. Because we
conclude in this section that those reasons are not supported by substantial
evidence, we need not repeat that analysis here.
24
Section 8.5.F.4 of the regulations provides in relevant part: ‘‘In granting
a Special Permit, the Commission may: (a) stipulate such conditions as are
reasonable and necessary to protect or promote the public health, safety
or welfare; property values; the environment; sound planning and zoning
principles; improved land use, site planning and land development; or better
overall neighborhood compatibility . . . .’’