LLC v. ZBOA (2010)

MEMORANDUM OF DECISION

This is an appeal by plaintiffs, Green Falls Associates, LLC (Green Falls) and Ashwillet Brook, LLC (Ashwillet), from a decision of defendant, Zoning Board of Appeals of the Town of North Stonington (Zoning Board), upholding the determination by defendant Craig Grimord, Zoning Enforcement Officer of the Town of North Stonington (ZEO), that a property line adjustment of Green Falls property did not comply with the requirements of the Zoning Regulations of the Town of North Stonington.

The facts in this case are not in dispute.

Green Falls owns a 50.93-acre parcel of real estate located on the southerly side of Lake of Isle Road in North Stonington, Connecticut.   The westerly boundary of the Green Falls parcel is the North Stonington-Preston town line.   Ashwillet owns an adjoining 4.04-acre parcel of real estate located in the southerly side of Lake of Isle Road in Preston, Connecticut.   The easterly boundary of the Ashwillet parcel is the North Stonington-Preston town line.

The plaintiffs filed an application with the ZEO for approval of a lot line adjustment pursuant to § 213 of the North Stonington Zoning Regulations, which provides;  in part:

Property Line Adjustment.   Any and all property line adjustment or lot division (splits) within the Town of North Stonington shall require the approval of the Zoning Enforcement Officer to determine compliance with the Zoning Regulations.   Property Line Adjustment is any change in the location of an existing property line provided it does not create an additional lot, does not result in a lot or condition that violates the Zoning Regulations, and does not increase any existing lot nonconformities with the dimensional requirements of the Zoning Regulations.

Green Falls proposes to convey 45.38 acres of its parcel to Ashwillet.   The result of such conveyance would be that Green Falls would own a parcel with 5.55 acres in North Stonington and Ashwillet would own a parcel with 49.42 acres in both North Stonington and Preston.

Green Falls, as owner, and Ashwillet, as prospective owner of the property included in the property line adjustment, are aggrieved by the action of the Zoning Board.

The ZEO denied the application for lot line adjustment on the basis that:

The proposal is not a lot line adjustment in North Stonington.   The proposal will create 2 lots in North Stonington and the proposal does not meet the bulk requirements for newly created lots in North Stonington.

The ZEO's reference to the proposal not meeting bulk requirements for newly created lots in North Stonington refers to a subdivision creating two lots out of the 5.5-acre parcel retained by Green Falls, which are shown on the plan submitted with the plaintiffs' application.   The subdivision lots are irrelevant to issue of lot line adjustment and will not be considered by the court.

A zoning board of appeals is endowed with liberal discretion and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably.  Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991).   The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).

A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board where an honest judgment has been reasonably and fairly exercised after a full hearing.   Bloom v. Zoning Board of Appeals, supra, 206.   The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record compiled before the agency supports the decision reached.  Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).

A decision must be upheld if it is supported by substantial evidence.   The substantial evidence rule has been defined as similar to and analogous to the standard to be applied in judicial review of jury verdicts.   It must be enough to justify, if a trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact.  Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).

The issue in this case is whether the proposed transfer of real estate between the plaintiffs would create one or two lots in North Stonington.   A review of the plan submitted with the plaintiffs' application indicates that two lots would be created in North Stonington, first, a large lot to be owned by Ashwillet containing 49.2 acres located partially in North Stonington and partially in Preston and, second, a small lot to be retained by Green Falls containing 5.5 acres located in North Stonington.

The plaintiffs argue that, prior to the proposed transfer, there were two lots, one in North Stonington and one in Preston.   Therefore, the plaintiffs claim that, since there were two lots prior to the proposed transfer and that there would be two lots after the proposed transfer, the transfer does not result in the creation of an additional lot in violation of § 213 of the Zoning Regulations.

The plaintiffs rely soley on the case of Fritz v. Zoning Board of Appeals, 54 Conn.App. 177 (1999), in support of their claim that the lot line adjustment did not create a separate lot in North Stonington because the lot line adjustment would incorporate North Stonington land into an existing lot in Preston.   The Fritz case is a very brief per curiam decision in which the appellate court affirmed the judgment of the trial court that a town boundary which crossed the property for which a variance had been requested did not automatically sever the property into two distinct lots for zoning purposes.   The plaintiff in the Fritz case owned the property on both sides of the town boundary line;  whereas, in the present case, the properties on the two sides of the boundary line presently are in different ownerships and the two lots to be created by the transfer would be in different ownerships with one in North Stonington and the other in North Stonington and Preston.   The Fritz case is, therefore, clearly inapplicable to the present case.

Based on the foregoing, the court finds that the decisions of the ZEO and the Zoning Board were proper and judgment may enter dismissing the plaintiffs' appeal.

Seymour L. Hendel, JTR

Hendel, Seymour L., J.T.R.