Opinion
No. CV 03 0193199 S
March 11, 2004
MEMORANDUM OF DECISION
STATEMENT OF THE APPEAL
The plaintiff Soup Alley, LLC appeals from the decision of the defendant, the Wilton planning and zoning commission pursuant to General Statutes § 8-8. The commission approved an application for a special permit submitted by the co-defendant, BHT Realty, allowing BHT to establish a second sit-down restaurant with an ancillary sale of alcoholic beverages on its property.
FACTS
Soup Alley operates a restaurant originally located at 237 Danbury Road, Wilton, Connecticut, an area zoned as a design retail business district. (Return of Record [ROR], Exhibit 40.) BHT Realty owns the property on that location. On June 22, 1998, pursuant to Resolution #698-17P, the commission granted Soup Alley a special permit (SP #274), with conditions, which allowed a change in use from a cleaners to a sit-down, fast food restaurant. (ROR, Exhibit 40.) The third provision of Resolution #698-17P states, "The restaurant use in the new location and in the building as a whole shall be limited to 1,125 square feet . . ." (ROR, Exhibit 40, p. 4.) On April 23, 2001, the commission amended the special permit, which permitted Soup Alley to relocate and to occupy its current location, subject to further conditions stated in amended Resolution #401-6P. (Plaintiff's Exhibit C.) The third provision, stated above, remained a condition of Resolution #401-6P. In September 2002, BHT submitted an application to the commission requesting another amendment to SP #274 and Resolution #698-17P, which would allow a second restaurant to operate on the premises, with an ancillary sale of alcohol. (ROR, Exhibit 39.) Public hearings were held on October 28, 2002, November 12, 2002 and November 25, 2002. (ROR, Exhibits 47, 48 and 49.) On December 9, 2002, the commission granted BHT's application through the adoption of SP #274A and Resolution #1202-15P. (ROR, Exhibit 9.) Notice of the commission's decision was published in the Wilton Bulletin on December 12, 2002. (ROR, Exhibit 6.) The present appeal followed and was filed by Soup Alley on December 17, 2002.
JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, 829 A.2d 801 (2003). "[Appellants must establish] standing on the basis of either classical or statutory aggrievement." Id., 436.
Soup Alley asserts aggrievement on two grounds. It first alleges that it "is aggrieved by the decision of the Defendant Commission and has specific business and legal interests that will be specifically and injuriously affected by the Defendant Commission's decision in that the use allowed by the Defendant Commission's decision will result in inadequate parking on the premises to the detriment of the Plaintiff's leasehold interest and the Plaintiff's business and the Commission's decision will interfere with and preclude the Plaintiff from expanding the Plaintiff's restaurant use of its leasehold to the detriment of the Plaintiff's leasehold interest and the Plaintiff's business." (Appeal, ¶ 13.) Soup Alley then alleges that "[t]he plaintiff, as a taxpayer of the Town of Wilton, is aggrieved by the decision of the Defendant Commission and has standing to appeal the Defendant Commission's decision, in that the decision involves the sale of liquor." (Appeal, ¶ 14.)
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . ." (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 539.
"Since 1953, this court has consistently held that a resident taxpayer appealing a zoning decision involving the sale of liquor is, a priori, an aggrieved person under § 8-8." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 201, 676 A.2d 831 (1996). "[T]o be an aggrieved person within the meaning of the statute one must show a pecuniary interest injuriously affected by the action of the zoning board of appeals and that such a showing may be sufficiently made, in a case where liquor traffic is involved, by proof that one is a taxpayer in the town, in view of the pecuniary effect upon every taxpayer resulting from the incidents of such traffic." (Internal quotation marks omitted.) Id., 198.
Soup Alley alleges that it is a taxpayer in the town of Wilton, and it has submitted a tax bill from the town of Wilton and a check paid to the town of Wilton as evidence of its status as a taxpayer. (Trial Exhibits No. 1 and 2.) It contends that it is aggrieved by the commission's action because "any taxpayer in a municipality has automatic standing to appeal from a zoning decision involving the sale of liquor in that community." Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 186-87. BHT counters, however, that Soup Alley does not have automatic standing to file this appeal as an aggrieved taxpayer because the application before the commission was for a special permit, not an application for the approval to sell alcohol.
The Supreme Court in Alliance Energy Corp. v. Planning Zoning Board, 262 Conn. 393, 403, 815 A.2d 105 (2003), has observed, " Jolly, Inc . . . stands for the proposition that when an action taken by a zoning board involves the sale or use of liquor or affects traffic in connection with the sale or use of liquor, taxpayers are presumed to be classically aggrieved . . . Specifically, because public policy concerns about the adverse effects of liquor sales and consumption cause municipalities to devote numerous resources to monitor and police those activities, an action of a zoning board that involves the sale or use of liquor or that affects traffic in connection with the sale or use of liquor is presumed to have a negative effect on the pecuniary interest of each taxpayer in the community. A taxpayer claiming aggrievement by such an action, therefore, is presumed to have been specially and injuriously affected by that action. Thus, a taxpayer claiming such aggrievement automatically satisfies the classical aggrievement test." (Citation omitted.) Id.
The special permit application in this appeal requests a permit for a "sit down restaurant with ancillary sale of alcohol." (ROR, Exhibit 39, p. 2.) Although the special permit is not an application for the sale of alcohol, the special permit involves the sale of liquor. Accordingly, it is found that Soup Alley is classically aggrieved.
Timeliness and Service of Process
General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Subsection (f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
The commission's decision was published in the Wilton Bulletin on December 12, 2002. (ROR, Exhibit 8.) On December 20, 2002, this appeal was commenced by service of process on Calvin Braunstein, chairman of the Wilton planning and zoning commission and Kathy M. Cooper, the town clerk for the town of Wilton. (Marshal's Return.) Therefore, this appeal was commenced in a timely fashion and upon the proper parties.
SCOPE OF REVIEW
"A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks 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." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215-16, 779 A.2d 750 (2001).
"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Internal quotation marks omitted.) Id., 217. "It is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations . . . The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn. App. 566, 569, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997).
"In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record . . . [E]vidence 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 . . . The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence . . . to support any such reason [however] must be substantial . . ." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221. "[I]n a traditional zoning appeal, if a zoning agency has failed to give [formal, official, collective] reasons, the court is obligated to search the entire record to find a basis for the [agency's] decision." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688-89, 791 A.2d 552 (2002).
"In applying the law to the facts of a particular case, the board [or the commission] is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
DISCUSSION
On December 9, 2002, the commission concluded, "the Wilton Planning and Zoning Commission has determined that the application is in substantial compliance with the Wilton Zoning Regulations . . . NOW THEREFORE BE IT RESOLVED that the Wilton Planning and Zoning Commission APPROVES Special Permit #274A effective December 12, 2002 subject to the following conditions . . ." (ROR, Exhibit 9, p. 2.) Soup Alley alleges that the commission acted illegally, arbitrarily and in abuse of its discretion in that it allowed the establishment of a second restaurant in violation of conditions previously attached to SP #274 and Resolution #698-17P, that BHT's application failed to provide adequate parking in violation of Wilton zoning ordinances, that the commission's approval of BHT's application violates § 29-10A(9), and that the commission's findings were contrary to fact and law.
Soup Alley argues that the commission erred by granting BHT's application to amend SP #274 because an administrative agency is not permitted to reverse itself unless a change of circumstance warrants such a reversal. Soup Alley contends that the circumstances leading the commission to limit restaurant space in the building as a whole to 1,125 square feet are not materially different and do not support the commission's decision to remove the limitation. Soup Alley asserts that BHT consented to the limitation because BHT chose not to appeal it at the time of the issuance of SP #274. Soup Alley, therefore, argues that BHT is now barred from requesting an amendment to the limitation. Further, Soup Alley argues that BHT's application fails to comply with the Wilton zoning ordinances, because allowing a second sit-down restaurant in the building will violate minimum parking requirements set forth in § 29-8.B.(5)(b). Soup Alley also asserts that BHT's methodology of determining the required number of parking spaces is incorrect and contends that BHT's application violates § 29-8.B.(2)(a) because BHT classified Prudential Connecticut Realty as a professional/business use under § 29-8.B.(5)(b). Finally, Soup Alley asserts that, when considering the factors contained in § 29-10A(9) of the Wilton zoning ordinances, the commission erred in granting BHT's application because allowing a second restaurant would result in overburdening the site.
Conversely, BHT argues that the commission did not have the authority to deny the special permit because the application conformed to existing standards and regulations, including Wilton's parking regulations. Also, BHT claims that when Soup Alley originally applied for a special permit for a restaurant, as a lessee, it did not have the authority to agree to a condition that would limit BHT's ability to use its building for another restaurant. BHT further asserts that the record contains substantial evidence to support the commission's conclusion that parking was sufficient to accommodate the existing use and the additional restaurant. BHT also argues that the commission may amend the special permit upon BHT's demonstration that the application complies with zoning regulations, specifically § 29-8.B.(5) and § 29-8.B.(2)(a) and (c). BHT contends that it is not required to show a change in circumstance because the change in circumstance test applies to variances, not to special permits. Finally, BHT asserts that the record supports the commission's finding that BHT's application conforms to § 29-10A(9) of the Wilton zoning ordinances and would not result in overburdening the site.
The condition being that contained in SP #274, which limits restaurant space "in the building as a whole, to 1,125 square feet."
The commission adopted BHT's brief and did not file a separate brief.
Soup Alley filed a reply brief in which it restated the arguments asserted in its initial brief. Specifically, Soup Alley argues that BHT consented to the limitation on restaurant space previously imposed by the commission. Further, BHT asserts that the change of circumstance rule applies to special permits and variances alike. Finally, Soup Alley argues that BHT's attempt to argue that the proposed restaurant will serve mainly dinner customers does not obviate the fact that it will also serve lunch.
The record contains motions filed by both parties regarding the supplementation of the return of record. This matter was resolved at trial.
I.
Wilton zoning ordinance, § 29-10A(15) provides, in pertinent part, "[a]n approved Special Permit may be amended or modified, provided that the application shall be made in the same manner as the original application and subject to the same procedures for approval. Amendments to the Special Permit found to be of a minor nature or which would not substantially alter the Special Permit as provided in 2-11.A.14.a-c may be approved by the Town Planner without another public hearing. Amendment to the Special Permit which would increase the scale, alter the scope or significantly alter the approved special permit except as provided in 29-11.A.14a-c may be approved by the Commission only after another public hearing."
Section 29-11.A.14 of the Wilton zoning ordinances provides: "All site improvements shall be carried out in strict compliance with the Site Plan approved by the Commission. All proposed amendments or modifications to the Site Plan shall require the approval of the Commission, in accordance with the requirements of this section, except amendments under all of the following circumstances shall be considered minor site plan amendments and may be approved by the Town Planner:
a. No proposed expansion of a building shall exceed 10,000 square feet GFA or 20% of the total GFA, whichever is less.
b. All required yards, setbacks and buffer areas shall be in compliance with all zoning requirements.
c. No significant change to street entrances; parking, loading or access areas; although additional parking spaces may be created, providing that they do not intrude on any required setback, buffer or landscaped area. Parking spaces may be deleted provided that there remains a sufficient number of spaces in accordance with the requirements of 29-8.B. CT Page 4032
The Town Planner shall notify the Commission of his or her decisions concerning minor Site Plan amendments on a monthly basis. If in the opinion of the Town Planner, the minor site plan amendment would be significant alteration of the approved Site Plan, even if it is in compliance with the above restrictions, the Town Planner may at his or her discretion require that it be reviewed by the commission. An applicant may appeal a decision of the Town Planner concerning a minor Site Plan amendment to the Commission."
These provisions of the Wilton zoning ordinances clearly provide that a special permit may be amended either by the town planner or with a public hearing, depending on the circumstances articulated in the ordinance. In the present appeal, the commission held the public hearing and applied all the requisite procedures and standards for considering special permit applications. In approving the application for the amendment, the commission found that the application complied with the Wilton zoning ordinances, as discussed infra.
Here, the commission held a public hearing and therefore, must have concluded that BHT's application for amendment to the special permit constituted a major site plan change, which required approval by the commission.
Soup Alley, however, argues that a change in circumstance must exist to warrant an amendment to SP #274 or elimination of the condition contained in Resolution #698-17P. Assuming, arguendo, that the change in condition standard applied to the present appeal, the record contains evidence sufficient to support the commission's decision to amend SP #274 because the current site plan conforms to the Wilton zoning ordinances.
"As a general rule, an administrative tribunal . . . is not permitted to reverse itself unless a change of circumstances intervenes which materially affects the merits of the case." Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 (1968). In Rocchi, the Supreme Court stated, "[b]ecause of the nature of a special exception, the board can grant a second application which has been substantially changed in such a manner as to obviate the objections raised against the original application . . . The board may grant the exception once it finds that all the requirements of the ordinance have been satisfied and that the applicant is willing to comply with any conditions which the board is empowered to impose." (Citations omitted.) Rocchi v. Zoning Board of Appeals, supra, 157 Conn. 111.
"The terms `special exception' and `special permit' are interchangeable." Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 242 n. 7, 794 A.2d 1016 (2002).
On June 24, 1998, the commission granted SP #274 with conditions as in stated Resolution #698-17P, which ensured sufficient parking on the premises. (ROR, Exhibit 40, pp. 2-3.) An increase in the availability of parking may constitute a sufficient change of circumstance and warrant the granting of a special permit. See Whiting v. Board of Zoning Appeals, Superior Court, judicial district of New Haven, Docket No. CV 92 0340789 (February 15, 1994, Booth, J.) ( 11 Conn. L. Rptr. 82). Here, the increase in parking conforms to the zoning ordinances, as discussed infra. The amended permit, Special Permit SP # 274A and Resolution #401-6P, rectify any previous parking concerns. Therefore, the commission could not deny the application as it conformed to the Wilton ordinances. See Connecticut Resources Recovery Authority v. Planning Zoning Commission, supra, 46 Conn. App. 569.
II.
The record contains substantial evidence to support the commission's finding that BHT's application for an amendment to SP #274 complied with Wilton's zoning ordinances, specifically, minimum parking requirements. Soup Alley asserts that the ordinances require 70 parking spaces on the premises. (ROR, Exhibit 19.) BHT asserts that the ordinances require only 62 spaces. (ROR, Exhibit 18.) BHT proposes to increase the number of parking spaces on the premises to 67. (ROR, Exhibit 18.)
Exhibit 18 and 19 are memoranda submitted by the parties to the Wilton planning and zoning commission, explaining their relative methodologies for calculating the number of required parking spaces.
A.
Soup Alley argues that the commission erred in classifying Prudential Connecticut Realty as business/professional and as a result, the commission erroneously found that BHT complied with the minimum parking requirements set forth in § 29-8.B.(5)(b). Section 29-8.B.(5)(b) of the Wilton zoning ordinances provides, in pertinent part, "5. Minimum Parking Requirements: The following requirements shall be considered the minimum number of parking spaces required for each use. Where the number of parking spaces is calculated to be a fraction, it shall be rounded up to the nearest whole number . . . b. BUSINESS USES, EXCEPT AUTOMOTIVE . . . (2) Retail or personal service businesses . . . 1 per 200 sq. ft. of GFA . . . (3) General, business or professional offices, non-medical . . . 1 per 300 sq. ft. of GFA . . ." The Wilton ordinances defines retail/personal service businesses as "[b]usinesses primarily engaged in providing services involving the care of a person or his or her apparel, such as barbershop, beauty salon, shoe repair, dry cleaning, tailoring or dressmaking, optician, clothing rental, photographic studio and other similar uses." § 29-2.B.(111). The ordinances, however, fail to define the business/professional classification.
BHT proposes 67 parking spaces on the premises. Under Soup Alley's proposed methodology, classifying Prudential as retail/personal services business would require 70 parking spaces. Accordingly, if Prudential is classified as a retail/personal service business, BHT's proposal fails to conform to the Wilton zoning ordinances.
At the October 28, 2002 public hearing, the commission heard testimony regarding the classification of Prudential as business/professional. (ROR, Exhibit 47, pp. 38-39; 48-49.) Soup Alley argued that Prudential is a brokerage house and not an office building. (ROR, Exhibit 47, p. 38.) Soup Alley also argued that Prudential is a retail operation, in the business of selling houses and therefore, should be classified as retail for the purposes of calculating parking. (ROR, Exhibit 47, p. 38.) Conversely, BHT asserts that Prudential's office consists of brokers contacting clients telephonically from their desks. (ROR, Exhibit 18, p. 2.) Also, because real estate brokers are licensed by the state, BHT argues, they are in a professional business. (ROR, Exhibit 18, pp. 2-3.) As such, BHT asserts that a business/professional classification is consistent with Prudential's use of the premises.
"Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . ." (Internal quotation marks omitted.) Vivian v. Zoning Board of Appeals, 77 Conn. App. 340, 344, 823 A.2d 374 (2003). Although the ordinances do not provide a definition for the business/professional classification, the commission had the discretion to conclude that a realtor is not analogous to a barbershop, beauty salon, shoe repair or dry cleaner, the examples of other retail/personal services businesses enumerated in the ordinances.
Even if the commission determined that Prudential is a retail/personal services business, the office would require 12 parking spaces, rather than 8, as proposed by BHT. Based upon § 29-8.B.(5)(b) and the analysis provided at II.B., infra, BHT's proposal conforms to the Wilton zoning ordinances.
B.
The Wilton zoning ordinances allow the commission to consider various factors in determining the parking requirements on a commercial property. Soup Alley contests the commission's conclusion that sufficient parking exists on the premises. The commission must determine, under the ordinances, how many additional parking spaces the establishment of a second restaurant requires. See Vivian v. Zoning Board of Appeal, supra, 77 Conn. App. 344.
The record contains substantial evidence to support the commission's conclusion that 67 parking spaces, as proposed by BHT, conforms to the Wilton zoning ordinances. Section 29-8.B.(5) states, "[w]here the number of parking spaces is calculated to be a fraction, it shall be rounded up to the nearest whole number." In its brief, BHT contends that, under this provision, the commission can round up for each type of use on the property. Rounding up for each use results in 63 required parking spaces. (ROR, Exhibit 46.) BHT proposes 67 parking spaces and therefore, BHT's proposal conforms to the ordinances.
Further, § 29-8.B.(2)(c), the joint/shared parking provision of the Wilton zoning ordinances, states, "[w]hen two or more different uses occur on a single lot the total amount of parking facilities required shall be the sum of the requirements for each individual use on the lot, except that the Commission may approve the joint use of parking space by two or more establishments, The total capacity of which space shall be no more than 20 percent (20%) less than the sum of the spaces required for each, in all zoning districts except Wilton Center . . ." Pursuant to Section 29-8.B.(2)(c), the commission had discretion to reduce the number of required parking spaces by twenty percent because the premises had more than two different uses (i.e. Wilton Family Eye Care is a medical office and Wilton Electrical Services is a professional office.) Using a conservative calculation, if the Wilton zoning ordinances required 70 parking spaces, and the commission, under § 29-8.B.(2)(c), could reduce the total capacity by twenty percent, then the commission may allow as few as 56 parking spaces on the premises.
As previously stated, when the commission fails to make a collective, formal decision, the court is obligated to search the entire record to find a basis for the [agency's] decision. JPI Partners, LLC v. Planning Zoning Board, supra, 259 Conn. 688-89. Although the commission did not expressly approve joint parking, it nonetheless has the discretion to approve a site plan with significantly less parking spaces than proposed by BHT. The record reveals that the commission could have found that the joint parking provision of the Wilton zoning ordinances allowed them to reduce the number of required parking spaces. In their memorandum, BHT argues that "§ 29-8.B.(2)(c) recognizes as appropriate for a reduction in parking spaces where two or more different uses occur on a single lot. It also takes into account that each use does not have a customer or employee using a fractional parking space." (ROR, Exhibit 18, p. 6.) Further, at the November 12, 2002 hearing, Mr. Spirer, counsel for Soup Alley, stated "[t]here is a provision for 20 percent sharing if you find that to be the case. And that's where the fudge factor comes in, that's where you can take a site as a whole and say, well, we're not going to require each tenant to have a specific amount of parking. It doesn't work on this site. You have tenants with small amounts of space, and if somebody is only allocated a space and a half and they're there and their secretary's there, they're already using their allocation. This is a type of site where you have to really hold the applicant to the letter of regulation. It's a minimal standard, and when all is said and done, I think 70 parking spaces is what is legitimately called for by the application before you." (ROR, Exhibit 48, p. 40.) The commission was aware of arguments in favor of, and against, the application of § 29-8.B.(2)(c). The commission could have reasonably concluded that the ordinances required under 70 parking spaces and, accordingly, could find that BHT's application complied with the Wilton ordinances.
Soup Alley also submitted parking surveys, taken on October 30, 2002, and November 1, 2002, that reveal the potential parking problems at the site. (ROR, Exhibit 21; Exhibit 22.) The transcript further reveals that, upon examining the surveys, the commission had concerns about parking. Specifically, commissioner Braunstein stated, "[w]hat you will end up doing — if this were to be approved — the expectation is that you're going to be close to in many of the cases or out of parking spaces. Just taking the two days that you do there alone and added spaces, there are at least four examples where you're almost out of space of your test cases. So, for a small sample, I don't know if that's a reasonable number or not. It's certainly not statistically valid for anything. But it is conceivable that you will run out of space. It is also conceivable that you will limit other usages in the building as well, because you are constrained in the space, particularly with the fact that once you get people sitting down, they're going to be there for an extended time." (ROR, Exhibit 48, pp. 12-13.) The commission, however, noted that running out of parking was "conceivable," rather than definite. Moreover, in response to commissioner Braunstein's concerns, commissioner Ward visited the site three times in two weeks and stated at the November 12, 2002 hearing, "I just went to see what it was like at lunchtime, which is where our concern was . . . [E]very time I made the corner and went around the back, there was empty spaces, which, I think, their chart shows you on the two days that they did track it, and all that means is that people are just too lazy to pull around the back and walk to the restaurant or walk to any of the locations . . . My problem here is unless I'm missing something, either way you calculate the parking, using their first, their second, or our interpretation, based on staff, I still come up with there's the right number of spaces on the lot." (ROR, Exhibit 48, pp. 14-15.) As such, the record contains substantial evidence in support of the commission's conclusion that parking on the premises is sufficient and complied with the Wilton zoning ordinances.
III.
The Supreme Court has recognized that it is "not required to review issues that have been improperly presented to [the] court though an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004). "Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power v. Dept. of Public Utility, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
Soup Alley contends that BHT's proposed use would result in overburdening the site and violate § 29-10.A.(9). While Soup Alley has raised the issue of an ordinance violation in its statement of appeal. Soup Alley merely states that "[w]hen all is said and done, Defendant BHT proposes a use which will overburden the site to the detriment of existing tenants (i.e. the immediate neighborhood) in violation of Section 24-10.A.9." (Plaintiff's Trial Brief, p. 19.) Therefore, this court declined to review the alleged violation of § 29-10.A(9).
Section 29-10.A.(9) states, in pertinent part, " Standards for Approval: Unless otherwise specified, a use allowed by Special Permit shall conform to all requirements of the zoning district in which it is proposed to be located and the standards contained herein. The Commission may grant a Special Permit after considering the health, safety and welfare of the public in general, and the immediate neighborhood in particular, as well as the following factors: a. The location and size of the proposed use; the nature and intensity of the operations associated with the proposed use; the size, shape and character of the site in relation to the proposed use . . ."
Plaintiff also addressed the alleged violation of § 29-10.A.(9) in a previous brief in opposition to the application. (ROR, Exhibit 19.) However, as the plaintiff failed to adequately address the issue in its trial brief, the issue is deemed abandoned, as discussed supra.
CONCLUSION
For the foregoing reasons, Soup Alley's appeal is dismissed.
RYAN, J.T.R.