HOT TOPIC: Proposed Bethel Crematorium Plaintiff B. Shawn McLoughlin Accuses P&Z Chairman Pat Rist of Conflict of Interest In Appeals Case, Requests Deposition

Report by Paula Antolini
February 27, 2017 10:00AM EDT

Photo above: Planning & Zoning Commission Chairman Pat Rist.

HOT TOPIC: Proposed Bethel Crematorium Plaintiff B. Shawn McLoughlin Accuses P&Z Chairman Pat Rist of Conflict of Interest In Appeals Case, Requests Deposition

Here is the latest update on the ongoing administrative appeals case involving Bethel business owner B. Shawn McLoughlin and Mono-crete Step Co. of CT LLC (the plaintiffs) and his efforts to build a crematory facility in Bethel’s Clarke Business Park at 12 Trowbridge Drive in Bethel, CT. McLoughlin has accused Bethel Planning & Zoning Commission (P&Z) Chairman Pat Rist, and possibly other P&Z Commission members too, of improprieties and conflicts of interest in deciding on the Special Permits for McLoughlin’s proposed crematorium in Bethel.

The crematorium Special Permits issue began back in July 2013 and was decided upon by the Bethel Planning & Zoning Commission on September 22, 2015, with all applications being denied in a 4 to 3 vote, in which Chairman Pat Rist was the deciding vote, switching her vote from a previous vote cast. This has now become an accusatory issue of the plaintiff McLoughlin, among other numerous allegations, in the latest appeals case developments.

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 included under three topics.

Topics listed in the latest court document entitled “Plaintiff’s Memorandum In Support of Motion to Take Deposition of Patricia Rist, Chair of Defendant Planning & Zoning Commission of the Town of Bethel,” are: “Predetermination, Personal Interest, and Receipt of Ex Parte Communications,” filed on February 22, 2017 in the Superior Court of the Judicial District of Hartford, CT.

The plaintiff also filed a motion on February 22, 2017, to take deposition of Patricia Rist. pursuant to C.G.S. §8-8(k)(2) and Practice Book 13-26. Plaintiff states, “Pursuant to C.G.S. §8-8(k)(2) and P.B. § 13-26 plaintiffs submitted this memorandum in support of their motion for an order allowing them to take the deposition of Patricia Rist, Chair of Defendant Planning & Zoning Commission of the Town of Bethel in the above administrative appeals case.”

Plaintiffs states, “Plaintiffs have grounds to believe that Chair Rist, and perhaps other Commissioners, had a personal interest, and/or predetermined one or more of the applications that are the subject of these administrative appeals. Plaintiffs also have grounds to believe that Chair Rist, and perhaps other Commissioners, were improperly influenced by individuals and information which should not be properly considered in zoning proceedings, and cast votes against the plaintiffs based on their personal interests, prejudgement and improper consideration of information.”

Plaintiffs states, “Chair Rist cast the deciding vote against plaintiffs in the special permit/site plan applications that are the subject of Docket Number HHD-CV15-6063334-S. Therefore plaintiffs respectfully submit that it is appropriate to take her deposition before determining the necessity of asking for depositions of others. This motion accordingly focuses on the grounds for deposing Pat Rist.”

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In the Plaintiff’s “Summary of Allegations of Predetermination, Personal Interest, and Receipt of Ex Parte Communications” plaintiff states that the actions in this case are “classic examples of impermissible targeting of an applicant based on predetermination and predisposition” after the P&Z approved McLoughlin’s initial request for a text amendment on January 22, 2014, which would then allow a crematorium in Bethel’s business park, previously not allowed, then ten months later accepted applications from a neighboring property owner, Connecticut Coining, Inc. (CCI) to delete §4.3.C(10a) from the regulations and adopt a one-year moratorium on accepting applications for crematoriums.

McLoughlin’s main complaint on record is that after the initial text amendment approval took place, he went ahead and planned for a separate crematorium building (later planned as two buildings) to be built on the same property as the Mono-crete Step Co. LLC, that he already owns in Clarke Business Park at 12 Trowbridge Drive. He claims he incurred much expense to do so, hiring the necessary individuals to do the planning work, based on this P&Z approval. Then after numerous long drawn out hearings, lasting until September 2015, the final decision about the crematorium was made on September 22, 2015, with the P&Z Commission denying all applications from McLoughlin.

In their appeal from the deletion of the Text Amendment, plaintiff McLoughlin alleges that:

” There were no changes in circumstances, nor passage of time, nor accumulation of experience, which justify removal of Section 4.3.C (10a) just … months after it became effective, particularly where the Commission knew that the initial applicant was proceeding to secure zoning approvals under that section, and as such, the Commission’s decision was patently arbitrary.”

“There was no additional or different evidence presented to the [Commission] in the initial hearing that justified removal of Section 4.3.C (10a) and as such, the Commission’s decision was patently arbitrary.”

“The use of land in the IP zoning district for crematories remained ‘in character with the uses in the industrial park,’ as found by the Commission on July, 2014, in approving the 2014 Application, and as such, the Commission’s decision was patently arbitrary.”

“The Commission’s decision was targeted directly at a single property owner, McLoughlin, who had an application pending before the Commission under the very section of the zoning regulations sought to be deleted.”

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Plaintiffs also intend to show that: the Commission’s actions in denying the Special Permit Applications were “arbitrary and capricious and an abuse of its discretion in a number of respects.”

In addition, the plaintiffs intend to show that:

“The Commission, or certain members thereof, were improperly influenced in casting their votes in a number of ways, including these alleged in the following allegations in their appeal from the denial of the Special Permit Applications:”

“The Commission considered evidence outside the scope of the administrative record in rendering its decision.”

“The Commission ignored the substantial evidence in the public record as set forth … and as such the Commission’s decision was patently arbitrary.”

“The Commission illegally denied the Applications based on the stated commercial intentions and business owners in the Francis Clarke Business Park, and such preferences and intentions cannot form the basis of denial of zoning applications which comply with the Zoning Regulations.”

“The Commission illegally denied the Applications based on the preferences and future development of the Economic Development Commission of the Town of Bethel and such preferences and intentions cannot form the basis of denial of zoning applications which comply with the Zoning Regulations.”

“The Commission ignored the substantial number of property owners i the industrial park who stated they supported the applications.”

“The Commission illegally denied the Applications based on a detrimental effect on neighboring properties and residences or the development of the district, where the proposed use was authorize by the Commission as a Special Permit Use within the zoning district.”

“The Commission illegally denied the Applications even though they fully complied with the technical requirements of the Zoning regulations.”

“The Commission failed to consider the proposed use as a use permitted in the zone by Special Permit, and instead based its decision on whether the use in genral should be allowed.”

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Plaintiff claims: “The moving force behind the Commission’s volte-face was Chair Rist. She voted to create majority 4-3 votes to delete the Text Amendment and deny the Special Permit Applications. Under these circumstances plaintiffs have a good faith basis to believe that Chair Rist’s change in position was motivated by personal, political interests and by outside influences that are not proper zoning considerations.”

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Under “Personal Interest” Plaintiff states::

Plaintiff cites C.G.S. §8-11 which codifies the prohibition of participation by a member of a land use agency in an application in which he or she has a personal bias of interest. It provides: “No member of any commission or board … shall participate in the hearing or decision of the board or commission …upon any matter in which he (she) is directly or indirectly interested in a personal or financial sense.” Our courts have held that “public policy requires that members of public boards cannot be permitted to place themselves in a position in which personal interest may conflict with public duty.”

“Where an agency member has a conflict of interest, it is improper for him (her) to participate in discussion on the application even though he did not vote on the final proposal; the statute prohibits participation in the hearing or decision of the application before the agency.”

“The test is not whether personal interest does in fact, conflict, but whether it reasonably might conflict.”

Under “Predetermination” Plaintiff states:

“While one who has a personal interest in the outcome of a matter in most cases be presumed to have predetermined the issue, predetermination or predisposition are themselves forbidden on the part of zoning officials as an aspect of due process,even when these officials are not charged with acting in manner that violates §8-11.”

“Evidence of predetermination is usually circumstantial, and requires a factual finding that the commission or certain members had made up their minds to disapprove the plaintiff’s application regardless of evidence or argument presented at the public hearing.”

“Courts have thus allowed the taking of evidence outside the record in support of allegations of predetermination to aid the courts in making this finding of fact.”

“When, as in this case, a commission, at the same time it is considering and denying a permit for an allowed use, is simultaneously considering and approving an application to delete the permitted use from its regulations, these circumstances can support a strong inference of predetermination, especially when the grounds for denial of the permit are arguably weak.”

Under “Ex Parte Communications” Plaintiff states:

“Another example of procedural illegality that has prompted trial courts to allow evidence is when ex parte communications are alleged to have taken place between members of a zoning agency and interested parties.

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The Argument from Plaintiff:

“Plaintiffs submit that it is reasonably probably that additional evidence will be required concerning 1) the Commission’s predetermination to deny plaintiffs’ Special Permit Applications; 2) Chair Rist’s personal interest that caused her to reverse her position and cast the deciding vote to deny the Special Permit Applications; 3) whether Chair Rist and/or other members engaged in improper ex parte communications or otherwise allowed outside influences to shape their votes.”

” 1. The Timing and Circumstances Surrounding the Commission’s Deletions of the Text Amendment at the Same Time It Considered and Denied the SpecialPermit Applications Warrants the Taking of Additional Evidence as to Predetermination of th Chair ans Perhaps Other Commission Members.

“The abrupt reversal of the Commission’s position to allow crematories as special permit uses raises serious questions about whether Chair Rist and other members had predetermined the Special Permit Applications.”

“The timing and circumstances surrounding the Commission’s concomitant consideration of the Deletion Application – and its approval of that application in May 2015 and again at the same meeting on September 22, 2015 in which it denied the plaintiff’s Special Permit Application – demonstrate its unwillingness to consider the plaintiff’s applications on their merits. This is strong evidence of predisposition and predetermination.”

“These troubling circumstances provide ample support for a conclusion that the primary purpose of the Commission’s actions was not promotion of the public welfare, but targeting the plaintiffs to preclude them from using the McLoughlin Property to build a crematorium. In short, the record facts alone warrant the taking of additional evidence regarding predetermination, and, given Chair Rist’s pivotal role in these decisions clearly justify the taking of her deposition.”

“2. The Circumstances Surrounding Chair Rist’s Candidacy for First Selectman at the Same Time she was Consideringand Voting to Deny the Special Permit Applications Warrant the Taking of Additional Evidence on Whether her Personal Interest in the Election Might Reasonably Have Conflicted With her Duties of Impartiality.”

“Additional facts raise a serious issue of whether Chair Rist’s personal interest motivated her to switch her position and cast the deciding vote to deny the Special Permit Application.”

“In or about June 2015, Chair Rist announced her candidacy for First Selectman of Bethel, running on the Republican ticket. She received her party’s official nomination in July 2015. Thus she was running her campaign throughout the summer of 2015, during which time the Commission was holding hearings on and deciding the Special Permit Applications. She publicly stated that her platform included continuing the economic ‘growth’ of the town that she and the Commission ‘have been able to achieve.’ “

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“3. Additional Evidence Will be Required on Whether Chair Rist had Ex Parte Communications.”

“Plaintiffs also submit that they should be allowed to depose Chair Rist on whether she had ex parte communications that may have influenced her vote to deny the Special Permit Applications.”

“The facts are that she was a candidate for First Selectman, on a pro-growth theme, during the same time period that the Commission was hearing and deliberating on the Special Permit Applications, amidst the town-wide controversy discussed above. These circumstances give rise to a substantial possibility that Chair Rist had outside communications with voters, business owners, party officials, and/or Town officers.”

“Indeed, Chair Rist conceded during the hearing on the Moratorium and Deletion Applications that she had contacted a crematorium owner on her own, but did not reveal the substance of those communications.”

“Given the highly public nature of these applications and the inevitably public nature of her candidacy, plaintiffs should be entitled to depose Chair Rist about whether she had any additional ex parte communications and how they may have influenced her vote.”

“Chair Rist’s vote was the essential and deciding factor in the outcome of the Special Permit Applications. Fundamental fairness therefore mandates that plaintiffs be allowed to explore these topics with Chair Rist in a deposition.”

Photo above: Bethel Advocate file photo from a Planning & Zoning Commission “work session” meeting in the CJH Municipal Center in Bethel, about the crematorium, on September 8, 2015.

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P&Z DECISION:

The P&Z issued a very detailed account of reasons why applications were not approved. Reasons given for denying the applications were numerous. See below for some of the resolution statements by the P&Z.

Click here to view details of final decision from P&Z Commission in September 23, 2015 Bethel Advocate article, “Plans for a Bethel Crematorium Go Up In Smoke, Bethel P&Z Denies All Crematorium Applications” where they state in a P&Z resolution:

“The Commission finds that the Special Permit application for locating a crematory use in the subject location will not promote the public health, safety and general welfare of both commercial and residential properties as well as those that may work or reside in them.”

McLoughlin then appealed these decisions in the above cases, and it is in litigation now.

We recently contacted Pat Rist for comment and she said, “My lawyer advised me not to comment while the appeal is pending.“

Photo above: Bethel Advocate 2015 file photo, P&Z Commission members.

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The Litigation Scheduling is presently filed as follows:

December 1, 2016 -Filng of Transcripts (in all appeals)

February 15, 2017 – Motions for Depositions of Planning & Zoning Commission Chair and one additional member (objections to be filed within two weeks thereafter)

May 15, 2017 – Additional motions for depostions and/or to supplement record (objections to be filed within two weeks thereafter)

August 15, 2017 – Plaintiffs’ Brief

October 2, 2017- Defendants/Intervenor Briefs

November 1, 2017 – Plaintiffs’ Reply Brief

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You can still sign a petition against the crematorium and add your name for support, and leave comments and view other residents’ comments, as this is still an issue in Bethel:

Sign the petition: