Paul Bonaventure et al. v. Zoning Board of Appeals of Middlebury (2012)

MEMORANDUM OF DECISION Re Administrative Appeal

Factual Background

This appeal is from the Town of Middlebury Zoning Board of Appeals' denial of variances of lot area, lot square, and frontage of land known as Lot # 31 on a map filed with the Town Clerk of Middlebury and entitled “Subdivision of Land of Judd and Bronson Incorporated, Middlebury, Conn., August 9, 1951.”   R 54.¹  The plaintiffs, Paul and Jeanine Bonaventure, are the present owners of Lots # 31 and # 32 on that map—which property is known as 35 Woodland Road within the town.   R 22.

The original developers, Judd and Bronson Incorporated, sold the two adjacent parcels to Oscar and Minnie Normand by warranty deed dated October 31, 1951, which deed described two separate parcels with legal descriptions for each piece.   R 46.   In 1996, the two parcels were transferred by a Probate Certificate of Devise from the Estate of Mrs. Normand to her two daughters, the plaintiff, Jeanine Bonaventure, and Albertina Weller;  in the same year, Mrs. Bonaventure acquired her sister's interest by quitclaim deed.   Mrs. Bonaventure transferred an undivided joint interest to the property to her husband Paul by quitclaim deed of March 5, 2004.   R 26.   Each of these subsequent transfers employed the language of the original deed from Judd and Bronson to the Normands—that of two separate parcels with individual legal descriptions.

The subject property is situated in an R–40 zone which requires 40,000 square feet per lot, minimum frontage of 150 feet, and minimum lot square of 150 feet.   R 55, 56.   Lot 31, the smaller of the two lots, has approximately 25,300 square feet with 130 feet of frontage on Woodland Road and Lot 32 has approximately 30,700 square feet with 130 feet of frontage on Woodland Road. R 19, 21.   Both parcels are non-conforming because neither satisfies the lot area, frontage, or lot square requirements referable to the R–40 zone.

Motivated to sell Lot 31 as a building lot (R 22), the plaintiffs' application for variance was filed with the defendant ZBA on February 6, 2008.   R 22.   On June 11, 2008, the ZBA voted 3–2 to approve the application.   Because C.G.S. § 8–7 requires an affirmative vote of four (4) members to approve an application for variance, the application was denied—and, thus, this appeal which was heard by the court on December 13, 2011.

The parties ² are agreed the plaintiffs are statutorily aggrieved under C.G.S. § 8–8(a)(1).

ISSUE:

Did the Board, in denying the application for variance, act arbitrarily, illegally, and in abuse of its discretion?

APPLICABLE LAW:

A zoning board of appeals is endowed with liberal discretion and its actions are subject to review by the courts only to determine whether those actions were unreasonable, arbitrary, or illegal.  Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991).   The burden of proof is upon the party seeking to overturn the board's decision to demonstrate the board acted improperly.  Id., at 269–70.  “[C]ourts should not substitute their own judgment for that of the board ․” Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 644 (2001).   The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings.  Id. The trial court, upon a judicial appeal from the board pursuant to General Statutes § 8–8, must focus on the decision of the board and the record before it, (sic) because it is that decision and record that are the subject of the appeal.  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90 (1993).   The appeal must be denied if an examination of the record discloses substantial or sufficient evidence the Board did not act illegally, arbitrarily, or in abuse of its discretion.

“[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 ․” “[I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ․” Newtown v. Keeney, 234 Conn. 312, 319 (1995).   The possibility of drawing from the evidence two inconsistent conclusions does not prevent an administrative agency's finding from being supported by substantial evidence.   See e.g., Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 16 L.Ed.2d 131 (1966).

Adjudication:

C.G.S. § 8–6(a)(3) enunciates the standard for the granting of a variance.   It provides the zoning board of appeals has the power to:

determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done ․

The statutory mandate is therefore that the variance must be shown not to substantially affect the comprehensive zoning plan and adherence to the strict letter of the zoning ordinance must be shown to create unusual hardship unnecessary to the carrying out of the general purposes of the zoning plan.   R. Fuller, 9 Connecticut Practice Series:  Lane Use Law and Practice (3d E.2007 § 8:5.).  “The zoning board of appeals must act in the narrowest manner possible to serve the ends sought.”   Tondro, Connecticut Land Use Regulation (Sec. Ed.1992), Chp. 3, p. 124.

While the entirety of the subject property (35 Woodland Road) has always been conveyed by a single deed, that deed listed the separate parcels (Lots 31 and 32).   Photographs demonstrate Lot 31 has been maintained in its natural state and Lot 32 (on which sits the plaintiffs' home) appears groomed.   R 57.   In 1944, when the town extended the sewer line to Woodland Road, sewer laterals to both lots were provided.   Though plaintiffs argue this action reinforced the separate identities of the parcels and thus bolsters their argument for “intent,” it is the intent of the property owners that is relevant and there is no evidence—indeed no argument—that the laterals were at the request of any owner of this property (Neither plaintiff here had any ownership interest until some fifty [50] plus years later).   Contrarily, the town of Middlebury has always assessed 35 Woodland Road as a single lot and there is only one assessor's card maintained and a single tax bill issued for 35 Woodland Road. R 34.

The Middlebury Zoning Regulations were revised in 1959.   Section 10.5 addresses the continuance of nonconforming lots.   Specifically, Section 10.5.3 provides a building or other structure may be constructed on such land “if the nonconformity is due to the fact that the area has been up-zoned and the owner builds on the lot within five years of the effective date of the upzoning (Emphasis added.).”   Jeanine Bonaventure's family has owned the property since 1952 and the plaintiffs have lived there since 1995.   R 22.   There is no substantial dispute that the nonconformity of these lots is as a result of upzoning which occurred when the revised regulations created more specific definitions applicable to, inter alia, the RU–40 district wherein 35 Woodland Road is located.   Lot standards for the RU–40 district are virtually identical to the current R–40 zone.   R 46.   There is also no dispute among the parties that there is not compliance with Section 10.5 of the regulations because no building on Lot 31 has occurred within five (5) years of the 1959 revision nor at any time since the property was in Mrs. Bonaventure's family.   The instant application for variance falls well outside the window of opportunity to build as provided for in § 10.5.3.

In their brief and at oral argument, the plaintiffs have relied upon C.G.S. § 8–2(a) as amended in 1989.   The statute provides:

Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.   Such regulations shall not provide for the termination of any nonconforming use solely as a result of the nonuse for a specified period of time without regard to the intent of the property owner to maintain that use.

A review of the Record does not permit a finding any owner of Lot 31 from the time the property was owned by the Normands (Mrs. Bonaventure's parents) to the present ever had any intention of building on Lot 31;  in fact, the opposite is true.

The defendants' position is that a merger of Lots 31 and 32 has occurred;  the plaintiffs advocate the lots have maintained their identities as separate parcels.  “The merger of contiguous lots owned by the same person can merge into one lot if the owner so intends or the relevant zoning regulations so require.”  Johnson v. Board of Zoning Appeals, 35 Conn.App. 820, 826 (1994).  “Once merged, the parcels form one lot that meets or more closely approximates the zoning requirements and the separate lots lose their exception for nonconformance.”  Id. The focus in determining the issue of merger is the manner in which the lots are used.  Neumann v. Zoning Board of Appeals, 14 Conn.App. 55, 61–62 (1988).   Plaintiffs urge the court to find such intent by virtue of Lot 32 (on which sits the Bonaventure home) presenting as “manicured” ³ and Lot 31 appearing uncut and in its natural state.   All parties agree the conclusion of intention is an inference of fact.   See e.g., Carbone v. Vigliotti, 222 Conn. 216, 227 (1992).   The applicants represented to the defendant Board that the Normands had purchased Lot 31 as an investment to either be built upon by one of the Normand children or to be sold in the event of financial hardship.   R 22.   The relevant “intent,” however, is the intent of the present owner.   Thus, neither the Normands' “plan” for the property nor the town's providing of sewer laterals to both lots is helpful to plaintiffs because there is no evidence that was at the request of either of the Bonaventures and it is not the intent of a stranger to the property that is relevant.   See e.g., Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 164 (1989).   Additionally, this court cannot find an intent to preserve Lot 31 for future building in the absence of any actions indicative of such—i.e., the clearing of the property.   Intent cannot be inferred from inaction.

As counsel for plaintiffs noted before this same Zoning Board of Appeals in the variance application of Roger and Eleanor Carroll (R 17), our Court of Appeals had this to say when confronted with a regulation similar to Section 10 of the Middlebury Regulations:

[W]here a lot became substandard by virtue of the passage of more restrictive zoning regulations, and where that lot was at the time of the passage of that legislation under common ownership with that of an adjacent lot, such zoning regulations have refused to continue to recognize the separate validity of that lot.   The common exception of lots which were recorded prior to the effective date of a restrictive ordinance is limited to lots which were in single and separate ownership on that date.   Under such a provision, an owner is entitled to an exception only if his lot is isolated.   If the owner of such a lot owns another adjacent to it, he is not entitled to an exception.   Rather, he must combine the two lots to form one which will meet, or more closely approximate, the frontage and area requirements of the ordinance.  Neumann v. Zoning Board of Appeals, 14 Conn.App. 55, at 60 (1988).

As counsel and the Court in Neumann noted, it is a general goal of zoning law to “reduce nonconforming to conforming uses with all the speech justice will tolerate.”  Id., at 62.  (Citations omitted.)   Application of C.G.S. § 10.5.3 in the instant case is not confiscatory in that the plaintiffs are not deprived of the continued use (or “non-use”) of Parcel 31 as that lot has historically been used since at least October 15, 1959.   R 21.   Nor can it be said Lot 31 is without value since, were the Bonaventures to sell their present home and all of the land comprising 35 Woodland Road, the property would have enhanced value to a buyer with interest in building a larger home (with a larger yard) than is now on Lot 32.

Ultimately, C.G.S. § 8–2 does not come into play if the parcels had merged prior to 1989 (when the statute was amended).   If, as this court concludes, the property had already merged into a single tract for reasons herein stated prior to 1989, C.G.S. § 8–2 is inapplicable.

This state's Supreme Court has upheld the validity of automatic merger in Goulet v. Zoning Board of Appeals of Cheshire, 117 Conn.App. 333 (2009).   There the owner had title to two contiguous parcels of unimproved land, neither of which met the minimum dimensional requirements of local regulations.   Goulet's application for variance to build a single-family residence was denied by virtue of the local board's finding the lots had merged by operation of a Cheshire zoning regulation similar to Middlebury Zoning Regulation § 10.5.2 which provides:

No owner of the parcel since October 15, 1959, shall have been the owner of contiguous land which in combinations of such nonconforming parcels would make or would have made a parcel that conforms, or more nearly conforms, to the area, shape or frontage requirements of these regulations pertaining to lots.

It is undisputed that a title search of both parcels here and the applicants' testimony before the Board demonstrates joint ownership in both parcels since October 15, 1959.   R. 21, 32.   The requirements for merger by operation of law under § 10 of the town's zoning regulations have been met.

The record discloses the variance here was sought because the plaintiffs wished to sell Lot 31 as a result of financial difficulties they were experiencing.  “Financial considerations are relevant only in those exceptional circumstances where a board could reasonably find that the application of the regulations, as applied, bear so little relationship to the purposes of zoning that, as to the particular premises, the regulations have a confiscatory or arbitrary effect.”  Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89–90 (1969).   Proof of financial hardship having such effect requires more than testimony that “property can be sold only for a price substantially lower than can be obtained if a variance is granted to permit a use otherwise prohibited by the zoning regulations.”  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 371 (1988) No such evidence is here presented.   Nor does a zoning regulation that prevents land from being used for its greatest economic potential create the exceptional kind of financial hardship deemed to have a “confiscatory or arbitrary” effect.  Id., at 370.   The value of Lot 31 in its undeveloped state has always been and continues to be in the privacy it affords the owners of Lot 32.

There was substantial evidence before the ZBA to support its findings and it did not act illegally, arbitrarily, or in abuse of its discretion in denying the instant application for variance.

The decision of the Board is affirmed and the Appeal is dismissed.

SHEEDY, J.

FOOTNOTES

FN1. The Record returned by the defendant town does not contain verbatim transcripts of the Public Meetings before the Board;  the transcripts were lost as a result of water and relocation issues within the zoning office.   Testimony before this court was offered to provide additional information elicted at the hearings pursuant to C.G.S. § 8–8(k)..  FN1. The Record returned by the defendant town does not contain verbatim transcripts of the Public Meetings before the Board;  the transcripts were lost as a result of water and relocation issues within the zoning office.   Testimony before this court was offered to provide additional information elicted at the hearings pursuant to C.G.S. § 8–8(k).

FN2. Perry Kest, who owns land abutting the plaintiffs' property, was granted intervening status on environmental issues only and urges this appeal be denied..  FN2. Perry Kest, who owns land abutting the plaintiffs' property, was granted intervening status on environmental issues only and urges this appeal be denied.

FN3. Only a small portion of Lot 32 is shown in one of four photographs;  the corner only of what is presumably a portion of the house and a flower patch is shown on a recently mowed lawn.   R 57..  FN3. Only a small portion of Lot 32 is shown in one of four photographs;  the corner only of what is presumably a portion of the house and a flower patch is shown on a recently mowed lawn.   R 57.

Sheedy, Barbara J., J.