Report by Paula Antolini
June 16, 2017 7:40PM EDT
Breaking News: Motion Denied to Depose P&Z Chairman Pat Rist in Bethel Crematorium Appeals Case
The plaintiffs’ motions to depose Planning & Zoning Commission Chairman Pat Rist have been denied, according to a “Memorandum of Decision on Motion,” issued by Judge Berger on June 15, 2017.
Judge Berger ruled that the plaintiffs did not have enough evidence to support their claims of Pat Rist being improperly influenced, or had personal interest, or engaged in any ex parte communications, or that the plaintiff had prima facie evidence indicating predisposition or predetermination, in making the decision to allow crematoria usage.
In the ongoing litigation of the proposed Bethel crematorium appeals case (Docket Numbers HHD-CV15-6063334-S, HHD-CV15-6063335-S, and HHD-CV15-6063336-S) of MCLOUGHLIN, B. SHAWN (plaintiff) v. PLANNING & ZONING COMMISSION OF THE TOWN OF BETHEL Et Al (defendant), and Connecticut Coining, Inc. (at 10 Trowbridge Drive), the Plaintiff B. Shawn McLoughlin and Mono-crete Step Co. of CT LLC have accused Bethel Planning and Zoning Commission (P&Z) Chairman Pat Rist of numerous allegations.
We last reported that Plaintiff B. Shawn McLoughlin accused Planning & Zoning Chairman Pat Rist of conflict of interest in the ongoing crematorium appeals case. (Click here for Bethel Advocate article.)
The Plaintiff, under attorney Daniel E. Casagrande, had submitted a “Motion to Take Deposition of Pat Rist, Chair of Defendant Planning & Zoning Commission of the Town of Bethel” on February 22, 2017, and also a “Plaintiff’s Memorandum in Support of Motion to Depose Pat Rist…” with “Allegations of Predetermination, Personal Interest, and Receipt of Ex Parte Communications.” (Click here for Bethel Advocate article.)
On March 8, 2017, the Defense, under attorney Charles R. Andres, then submitted a “Memorandum in Opposition to Depose Commission Chair” (Rist), stating that, “(1) the plaintiff has failed to set forth a prima facie case, either from the record or outside the record, that Ms. Rist had a personal interest in, or predetermined, or engaged in, ex parte communications with respect to any of the applications under appeal, and the request is no more than a fishing expedition; (2) the plaintiff has waived any claim that Ms. Rist should not have participated in the decision (which is what it is attempting to claim now) because all of the facts highlighted by the plaintiff in its motion (principally, that Ms. Rist was a candidate for First Selectman until she lost a primary) were known to the plaintiff at the time of the proceedings and the plaintiff failed to request that Ms. Rist recuse herself.”
Photo: Planning & Zoning Commission March 2016 (not all members are shown in this photo), Bethel Advocate file photo.
Here is the latest update:
A “Memorandum of Decision on Motion” was issued on June 15, 2017, by Judge Berger, denying the motion by the Plaintiff B. Shawn McLoughlin to depose Planning & Zoning Chairman Pat Rist in the three appeals cases.
The “Memorandum of Decision on Motion” states, in part:
In the plaintiff’s appeals, they allege, among other things, that the commission’s decisions “were improperly influenced by individuals and information which is not properly considered in zoning proceedings, and cast votes to approve” the defendants’ applications based on this improper influence or information.
The plaintiff’s argue that the deposition is needed to determine why Rist changed her mind when first approving the crematoria use and then reversed her decision; whether her unsuccessful candidacy for first selectman impacted her decision, and whether she engaged in ex parte communications. The plaintiffs maintain she was improperly influenced by a statement of businesses in Bethel that that would move from the town if the crematoria use was permitted.
The General Statutes §8-11, in relevant parts, provides, “No member of any commission or board … shall participate in the hearing or decision of the board or commission to which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense … ”
The memorandum goes on to say, “Nevertheless [t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true … Local governments, therefore, would be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. Such a policy would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism.” Cioffoletti vs. Planning & Zoning Commission (1989), and Stafford Higgins Industries, Inc. v. Norwalk (1998)
The memorandum further states: “When enacting or amending its regulations, a local zoning authority acts in a legislative capacity. It must therefore be free to modify its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change … A legislative body is not necessarily bound by the rule which prohibits administrative boards, such as a zoning board of appeals, from reversing earlier decisions without a change in circumstances … The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board, which serves as a quasi-judicial function. Thus, although we have said that a zoning commission, should it ordinarily alter the classification of a certain area in the absence of changed conditions, it is clear that this rule, which is a restriction on the principle of legislative discretion, will only be applied in those rare instances where the zoning amendment is patently arbitrary. A less strict rule would require the court to exercise a legislative judgement.” Malafronte v. Planning and Zoning Board (1967)
Moreover, “an adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision.” Henderson v. Department of Motor Vehicles (1987)
“In the present case, the decisions of the commission are both legislative and administrative or adjudicative determinations with administrative decision following the legislative determination.”
Many more cases were cited, view entire memorandum here.
“Nevertheless, the request to depose Rist is made here without any offer of proof,” the memorandum reads. “The plaintiffs only argue that a reasonable disinterested person might perceive her vote as questionable and this assertion is solely based on her candidacy in the Republican primary for first selectman and her subsequent reversal on the text amendment. It is not a sufficient ground to subject her to a deposition to inquire into the reason for a change of vote.” See O&G Industries, Inc.v. Planning & Zoning (1995)
“In the present case, the plaintiffs assert only that Rist ran for public office, campaigned on a growth platform and changed her mind after initially voting for the plaintiffs’ text change allowing crematoria. Speculation does not warrant granting of the motion to take her deposition; the plaintiffs must show some improper bias or prejudgement.” See Clisham v.Board of Police Commissioners (1992)
“A members perception of what regulations best serve the general welfare, health, morals or safety of the community is not disqualifying personal interest as the statute forbids. It is immaterial whether, as in Malafronte v. Planning & Zoning Board, this perception leads to legislative action, or whether, as here, it leads to inaction, because ‘[a] local zoning authority acting within its legislative capacity is endowed with the freedom to act or not to act as it deems appropriate to meet the needs and demands of the body politic, as it determines those needs and demands.”
“Accordingly, the motions to depose Rist are denied.”
Editor note: We contacted Pat Rist for her comment and we will post her thoughts when we receive the information.
UPDATE June 17,2017:
Pat Rist responded and she cannot comment at this time.