18 Conn. App. 159 | Conn. App. Ct. | 1989
The defendants Dennis J. and Nancy R. Pistone, and the defendant Redding zoning board of appeals (board) appeal separately from the decision of the trial court reversing a decision of the board. The essential claim of the defendants is that the court erred in that it exceeded the proper scope of judicial review. The plaintiffs also have appealed and claim that the court erred (1) in presuming that the Pistones’ parcel of land could be subdivided and resubdivided, (2) in that its conclusion usurped the functions of the Redding planning and zoning commission (commission), and (3) in that its conclusion forecloses the plaintiffs from benefiting from their successful appeal. We find error on the defendants’ appeals.
Cushman acquired a portion of her property from her parents in 1929 by one deed by which her father conveyed a tract described as one acre more or less and her mother conveyed a tract described as two acres more or less. There was a house on this parcel and there were other structures. Cushman lived in the house for
Cushman’s mother also owned a large piece acquired as several parcels which consisted of several acres lying northerly of the parcel on which the house was situated. This land was distributed by the mother’s estate to Cushman and her two sisters, each taking an undivided one-third, and described in the certificate of distribution as containing thirteen acres, more or less. On September 2, 1939, Cushman and her two sisters conveyed 7.45 acres more or less to Bridgeport Hydraulic Company. On September 9, 1939, each of the two sisters conveyed her interest in the remaining portion of this property to Cushman, describing the parcel in their deed as containing three and one-half acres, more or less.
The northerly parcel was heavily wooded and there were stone walls separating the northerly and southerly pieces although there were gaps in the walls. A surveyor for the plaintiffs traced the history of the acquisition of the property by Cushman’s parents and concluded that there were five tracts which could be identified. Cushman mortgaged her property in 1951 and in the mortgage deed described two tracts, the first being the parcels obtained from her parents and the second being the small triangular piece. The property was taxed as one piece, but it was customary in Red-ding to consolidate tracts owned by a single owner and to tax them as one piece.
Zoning regulations were adopted in Redding and became effective in 1950. Subdivision regulations were adopted and became effective in 1957.
The plaintiffs claimed that all of the property that had been owned by Cushman had been merged by use and intent into one parcel, and that the 1984 map that showed three lots was an unapproved subdivision.
The plaintiffs have cited no authority, nor have we been able to find any, for the proposition that an owner must be deemed to have merged contiguous lots simply because the town taxes his land as one tract and he does not take any action physically to demonstrate that he desires to retain it as separate lots. The one exception we have found where merger may occur by operation of law is that found in some zoning regulations which may require, either expressly or implicitly, that under certain conditions a nonconforming lot merges with contiguous land owned by the same owner. See Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 60, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988); Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 48 n.2, 484 A.2d 483 (1984); but see Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1952). This is an understandable requirement because it furthers the general zoning purpose of eliminating nonconforming lots. No such regulation, however, has been brought to our attention in this case.
Courts must not substitute their judgment for that of the zoning board and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing. Tor-siello v. Zoning Board of Appeals, supra, 49. Where the board has stated the reasons for its action, a review
When the plaintiffs appealed to the board and challenged the zoning permit that had been issued, it became the duty of the board to apply the regulations to the facts and to determine whether, on the facts of the case, the regulations required that a copy of a subdivision approval be submitted with the application. See Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 513, 264 A.2d 552 (1969).
The board decided that the northerly and southerly Cushman parcels had not been merged and that subdivision approval was not required. It voted unanimously to deny the plaintiffs’ application to rescind the zoning permit. Contiguous land all owned by the same person does not necessarily constitute a single lot. Schultz v. Zoning Board of Appeals, supra, 338.
Zoning boards of appeal are entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In discharging this responsibility, a board 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. Id.
Upon the record, we cannot say that the board acted unreasonably, arbitrarily or illegally in concluding that the Pistone permit should not be revoked. The trial court erred by substituting its judgment for that of the board regarding whether a subdivision approval was
Our decision makes it unnecessary to consider the issues raised by the plaintiffs’ appeal.
There is error on the defendants’ appeals, the judgment is set aside and the case is remanded to the trial court with direction to dismiss the appeal as to the plaintiff Louis Molic on its merits, and to dismiss the appeal as to the plaintiff Robert Natkin for lack of aggrievement. The plaintiffs’ appeal is dismissed.
In this opinion the other judges concurred.
Another plaintiff, Robert Natkin, did not allege statutory aggrievement. After an evidentiary hearing, the trial court found that Molic was an aggrieved party under General Statutes § 8-8. Natkin was not present to testify at this hearing, however, and the court was unable to find that he was aggrieved under either the statute or the classical formulation. In its judgment, the court stated that it found for the plaintiffs Molic and Nat-kin. It is clear that the reference in the judgment to Natkin is merely an oversight by the clerk, and that the judgment should be corrected to reflect that the appeal is dismissed as to Natkin for lack of aggrievement.
Zoning Regulations of the Town of Redding § 6.2 provides in pertinent part: “Application for a zoning permit shall consist of:
“(a) Application form and fee, as prescribed by the Zoning Commission.
“(b) One copy of the following, where applicable:
-site plan approved by Zoning commission (Sections 5.1, 5.2);
-subdivision plan approved by Planning Commission . ”
General Statutes § 8-18 provides in pertinent part: “ ‘[Subdivision’ means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision . . . .”