Opinion
No. FST CV 03-0198198 S
March 20, 2006
MEMORANDUM OF DECISION
In these cases the plaintiff's appeal from decisions of the Zoning Board of Appeals (the "Board") of the Town of Darien on two applications filed by the plaintiffs concerning the proposed use of their residential property located at 10 Nickerson Lane in Darien.
The records in the appeals establish the following undisputed facts. The plaintiffs' property is designated as lots 10 and 11 on Map No. 2235 recorded in the Darien land records. Map No. 2235 was recorded immediately following the approval of a subdivision by the Town Plan Commission of the Town of Darien on February 14, 1953. As laid out on the subdivision map, lot 10 had an area of 1.008 acres and lot 11 had an area of 1.012 acres. Both lots were shown as bounded on the west by the waters of Holly Pond, a branch of Long Island Sound. The map shows that in 1953 all of Lot 11 and all but a sliver of Lot 10 were located in the "AAA" zone having a minimum lot area requirement of 43,560 square feet or 1.0 acre and side yard setback requirements of twenty-five feet. The remainder of Lot 10 was located in the "AA" zone which had a minimum area requirement of 17,434 square feet. At the time of plaintiffs' applications, 2003 and 2004 respectively, it appears that the lots were in the R-1 zone which has a minimum lot area of 43,560 square feet or 1.0 acre and a twenty-five-foot side yard setback requirement.
At the time of the 1953 subdivision the Darien Zoning Regulations contained no definition of "mean high water" or "mean sea level" and did not otherwise provide a datum to measure the boundaries (and hence area) of waterfront properties. However, it appears that the Planning and Zoning Commission accepted the elevation of 3.65 feet above mean sea level used by the surveyor who prepared the subdivision map. On July 15, 1973, Darien adopted section 486.2 of its Zoning Regulations which expressly recognized 3.65 feet above mean sea level as the "mean high tide line."
Under the laws of this state the owner of land abutting the water owns to the mean high watermark and the public, i.e., the state, owns the property between the high and low watermarks on navigable water where the tide ebbs and flows. Rochester v. Barney, 117 Conn. 462, 469, 169 A.2d 45 (1933).
In 1985 Darien adopted an amendment to its Zoning Regulations defining "mean sea level" as: "The average height of the sea for all stages of the tide. National Geodetic Vertical Data 1929, 19 year averages for Darien ending 1929 shall be the datum designated as zero in determining elevations." The record does not disclose whether this resulted in an immediate change in the "mean high tide line."
In 2002 the Darien zoning regulations were again amended to define "mean high water line" as: "The line formed by the intersection of the land and the plane of the most recent mean high water tidal datum, as established by the National Oceanic and Atmospheric Administration from time to time. The elevation of the mean high water line shall be expressed in terms of the National Geodetic Vertical Datum of 1929." The record does not contain any information as to the elevation of the mean high water line as of the date of the adoption of this amendment.
However, it appears that as of the date of the plaintiffs' applications the "mean high water line" as defined in the regulation was 4.3 feet above the 1929 datum or approximately 9 inches higher than the elevation in effect under the regulations in effect until 2002. The record includes no evidence as to when the sea level actually rose or when a new "mean high water mark" first went into effect. In any event in March 2003 a survey, using the 4.3 feet elevation, found lot 10 to have an area of .9764 acres instead of the 1.008 acres previously resulting from the use of the 3.65 feet elevation. The same survey found lot 11 to have an area, using the 4.3 feet standard of .9888 acres rather than the 1.012 acres under the 3.65 feet standard.
Or when the land subsided.
In 1955 the then owners of the property, Langdon S. Simons, Jr. and Anne M. Simons, had obtained a building permit and subsequently constructed a residence situated on the boundary between lots 10 and 11. Since that time lots 10 and 11 have been taxed by the Town of Darien as a single tax parcel. In 1966 a porch was added to the residence by a subsequent owner after a building permit was issued by the town.
The plaintiff's initial application was made to the Board of Appeals in August 2003, requesting two alternative forms of relief. The plaintiff's first requested an interpretation of Section 385 of the Darien Zoning Regulations that lots 10 and 11 could be used as separate building lots following the demolition of the existing residence. Secondly, should the first relief not be granted, the plaintiffs requested variances of lot area requirements to permit separate use of lots 10 and 11. On September 17, 2003 a hearing was held on the plaintiff's application. At the hearing the plaintiffs presented their evidence and arguments in support of the application and neighbors appeared in opposition to the application.
By decision dated October 30, 2003, the plaintiffs' applications were denied by the Board "without prejudice" due "to the lack of sufficient provided information." The decision did not otherwise explain what additional information the Board believed it required in order to address the merits of the plaintiffs' application. The plaintiffs filed an appeal of that decision to the Superior Court pursuant to General Statutes § 8-8.
Prior to filing a second application, the plaintiff applied to the Darien Zoning Enforcement Officer for a determination as to whether they were entitled to the separate use of their two lots. After receiving a negative reply dated March 23, 2004, the plaintiffs filed their second application on April 19, 2004 appealing the decision of the Zoning Enforcement Officer. In their second application plaintiffs attempted to present the Board with the issue as to whether the plaintiffs had two building lots protected by the provisions of General Statutes § 8-26a(b) or whether as the Zoning Enforcement Officer determined their lots had, at some point, merged and lost their character as building lots.
At the time of the plaintiffs' applications General Statutes § 8-26a(b) read: "Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision or resubdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change." Public Act 04-210 amended General Statutes § 8-26a(b) to add new provisions creating different rules regarding construction requirements for vacant and improved lots effective July 1, 2004. The amendment does not impact the issues presented by this case.
In contrast to their first application, the plaintiffs' second application did not contain a request for a variance as an alternative form of relief. The only issue presented to the Board was the plaintiffs' appeal from the decision of David J. Keating, Darien's Zoning Enforcement Officer, as set forth in his letter dated March 23, 2004. In that decision Keating ruled that, contrary to the plaintiffs' assertions, lots 10 and 11 did not become non-conforming by any amendment to the Darien zoning regulations, but rather were merged into one lot by "common law merger" due to the intention of the then owners of the lots in 1955 when they built a residence on the dividing line between the two lots. Keating's ruling did not recite any additional factual basis for his conclusion that lots 10 and 11 merged and became a single parcel. However, he expressly states: "The property was not merged by imposition of regulations."
A hearing on the plaintiff's second appeal was held before the Board on June 16, 2004. At the hearing the Board accepted evidence of the 2003 proceedings into the record and accepted new evidence and testimony. Once again the plaintiffs appeared in support of their application while neighbors appeared in opposition.
After the hearing, the Board passed a resolution to deny the plaintiffs' second application "due to the lack of sufficient, demonstrated evidence of an error." The plaintiffs filed on appeal to the Superior Court pursuant to General Statutes § 8-8. On May 25, 2005, by order of the court (Rogers, J.) the plaintiffs' two appeals were consolidated for trial.
A hearing on the appeals was held on January 10, 2006, at which time the plaintiffs produced evidence of their ownership of the subject property both at the time of the hearing and at the time of both their applications to the Board. The court found that the plaintiffs had sustained their burden of proving statutory aggrievement under General Statutes § 8-8(a)(1). The court then heard oral arguments of the parties on the issues raised in the appeals. By order of the court both parties submitted posthearing briefs.
STANDARD OF REVIEW
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning agency] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [agency] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [agency] supports the decision reached. If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [agency] . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d. 511 (2004).
PLAINTIFF'S FIRST APPEAL — FST CV 03-0198198 S
Both of the plaintiffs' applications to the defendant Board seek the same ultimate relief — separate use of lots 10 and 11. However, the form of the applications differ significantly. In their first application the plaintiffs requested "an interpretation" of certain sections of the Darien Zoning Regulations to allow separate use of their lots. In the alternative the plaintiff requested a variance to allow such separate use.
General Statutes § 8-6(a) sets forth the powers and duties of a zoning board of appeals. The powers include: "(1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with enforcement of this chapter or any bylaw ordinance or regulation adopted under the provision of this chapter . . ." (2) decide applications for special exceptions when required to do so under zoning regulations and (3) to consider applications for variances. The General Statutes do not empower a Zoning Board of Appeals to directly "interpret" zoning regulations. Obviously, a board of appeals must, in the course of discharging its assigned responsibilities, engage in the interpretation of the local regulations, however, a board of appeals has no statutory authority to issue interpretations of zoning regulations except in such context. The court cannot find that the defendant Board acted improperly in failing to take an action which it was not empowered to take.
In the absence of an order, requirement or decision made by the official charged with enforcement of zoning regulations that the plaintiffs were not entitled to make separate use of their two lots, the Board's denial of their application for a variance must also be upheld. The court could find no evidence in the record of the first hearing that, prior to that hearing the Darien Zoning Regulations had been applied to deny the plaintiffs the right to use their lots separately and thereby invoke an analysis of whether "exceptional difficulties or unusual hardship" justified the grant of a variance. The plaintiffs have failed to show that the record in the first appeal establishes that the Board acted in abuse of the discretion vested in it or in an arbitrary or capricious manner. Accordingly, the plaintiffs' appeal in FST CV 03-0198198 S must be and it is hereby dismissed.
PLAINTIFF'S SECOND APPEAL — FST 04-4001747 S
The plaintiffs' second application is limited to their appeal from the decision of the Board denying the plaintiff's appeal from the decision of the Zoning Enforcement Officer that lots 10 and 11 had become one by reason of a "common law merger" and that therefore the plaintiffs could not make separate use of those lots.
The plaintiffs claim that their right to separate use of lots 10 and 11 was not lost as a result of the construction of residence on the division line between the two lots by their predecessors in title. They assert that despite the location of the residence, both lots retained their identity as legal one-acre building lots. They claim that the lots' status as two separate legal building lots was not in doubt until Darien amended the town's zoning regulations to raise the level at which mean high water was measured. The change in level resulted in a reduction in area of both lots. However, the plaintiffs claim that their lots were protected under General Statutes § 8-26a(b) as legal building lots. The plaintiffs claim that at any time from 1955 until at least the 1985 amendment to the Zoning Regulations changing the definition of "mean sea level," owner of the lots 10 and 11 would have been able to tear down or relocate the residence and make separate use of the lots as a matter of right. The plaintiffs assert that after 1985 the lots enjoyed the protection of General Statutes § 8-26a(b).
As noted above, the record does not reveal whether the adoption of the flexible standard for determining mean high water, in 1985 resulted in a change in area of lots 10 and 11 or whether natural events occurring thereafter caused the reduction in area of the lots for zoning purposes.
The Board denies that the statute has any application to a situation in where the separate identity of building lots has been lost through "common law merger" in 1955, four years before the enactment of General Statutes § 8-26a(b) in any form.
GENERAL STATUTES § 8-26a(b)
Even in the absence of statutory protection, property owners possess vested rights against a municipality from combining two or more adjacent lots simply through the adoption or amendment of zoning regulations. R. Fuller, Connecticut Practice Series, Land Use and Practice (2d Ed. 1999) § 53.6.
In 1959 the legislature enacted General Statutes § 8-26a which granted additional limited protection against changes in zoning or subdivision regulations to lots in residential subdivisions which had been approved by a planning commission and recorded with the town clerk. The statute in its original form afforded this protection only during the three years following the approval of the subdivision. In 1965 the legislature amended subsection (b) of the statute to afford the same limited protection from zoning changes to buildings to be erected on protected subdivision lots. In 1969 the statute was amended significantly. The protections afforded by the act were still limited in time, but the period of protection began, not on the date of approval of the subdivision, but on the date of the enactment of the change in zoning or subdivision regulations. The period of protection was extended to five years. In 1971 subsection (a) of the act was amended to extend protection from changes in subdivision regulations to nonresidential as well as residential subdivisions.
(1959 P.A. 58, 59.)
February 1955 P.A. 422.
1969 P.A. 396.
In 1984 the legislature enacted amendments to General Statutes 8-3 regarding the protection of the right to erect buildings within five years of approval. Consequently, the provisions of General Statutes 8-26a(b) protecting the right to erect buildings was removed from that statute. At the same time the legislature removed all time limitations from the protections afforded to properly approved subdivision lots by General Statutes 8-26a.
P.A. 84-147.
There is no question that the subdivision in which lots 10 and 11 are located was approved by the Town Plan Commission of the Town of Darien on February 14, 1953 and consequently would fall within the scope of the protections afforded by General Statutes 8-26a(b) unless those protections were waived or abandoned by the plaintiffs or their predecessors in title.
The Board's finding that the two lots became one by virtue of a common law merger in 1955 would, if valid, support the Board's determination that the lots are not entitled to the protection of General Statutes 8-26a(b). In such circumstances the court would be required to dismiss the plaintiffs' second appeal. On the other hand, if the Board's determination of merger in 1955 cannot be sustained, it does not necessarily follow that the lots retained their integrity as legal building lots until they became entitled to the protections afforded by General Statutes CT Page 5410 8-26a(b).
THE BOARD'S FINDING OF "COMMON LAW MERGER."
In the resolution adopted by the Board denying the plaintiff's second application the Board made findings of fact supporting that decision. The Board's findings were set forth in paragraphs designated as "A." to "P." Because of the importance of these findings to the court's disposition of the plaintiffs' second appeal the findings are set forth in their entirety.
A. The July 23, 1952 Zoning Regulations identify the subject property as being in the "AAA" residence zone requiring, among other limits, 43,560 minimum square feet (1 acre) of land and a minimum side yard setback of 25 ft. for structures.
B. On February 14, 1953 the Darien Town Plan Commission approved a subdivision of property owned by John Nickerson as identified on Town Record Map No. 2235. The current application refers to Lots 10 11 on this Record Map No. 2235.
C. On March 17, 1953 Langdon S. Simons, Jr. and Anne M. Simons, purchased the subject former Lots 10 11 from John Nickerson.
D. The November 3, 1953 Zoning Regulations also designate the subject property as within the "AAA" residence zone with among other limits, the same minimum 25 ft. side yard setback.
E. On April 7, 1955 Sam Grasso Co., Inc. applied for a Building Permit to construct a `dwelling attached garage' for Mr. Mrs. Langdon S. Simons, Jr. Included on the application was a description indicating that the intent was to construct a building 55' × 25' 9" on a lot with ` 125 front, by 250' av. feet deep, identified as 'Lot No. 10' Nickerson Lane.
F. There is not record of any variance application being made for this property in the 1950s.
G. On November 14, 1966 Olson-Wood Associated, Inc. applied for a Building Permit to construct a `new side entrance and open porch' addition to the dwelling for Dr. George S. Hughes. Included on this application was a description indicating that the intent was to construct the addition on a lot with ` 250 front by 219+ feet deep' identified as '10 Nickerson Lane' This indicates that as of 1966 the owner's representative describes the property as one lot known as 10 Nickerson Lane.
H. There is no record of any variance application being made for this property in the 1960s.
J. Evidently the original owner of the property (Simons) chose to construct the house in an attractive spot near the center of the former two lot property rather than just on Lot #10. Therefore, when the residence was first constructed on the subject property, it did not conform with the minimum 25 ft. side yard setback from the former division line. If the owner intended to retain the division line between the two former lots, variances would have been required from the ZBA in order to do so.
K. The original owner of the house clearly intended to disregard the prior lot division line and in 1955 wilfully merged the two former lots into a single larger property.
L. All of the submitted Town of Darien Assessor's Field Card Records (10 Pages) indicate that the subject 10 Nickerson Lane land has been identified taxed, and considered as one property comprised of two former parcels.
M. Under The Common Law, from the time the house was built in 1955, the subject property has been (and remains today) one lot.
N. Since this one larger merged lot was never shown on a subdivision plan approved by the former Darien Town Plan Commission or the current Town Planning Zoning Commission, there are no longer 2 lots that are protected by Section 8-26a of the Connecticut General Statutes.
O. On March 23, 2004, the Zoning Enforcement Officer (David J. Keating) made the correct decision to deny the February 27, 2004 request of Attorney Robert Maslan for a determination that the subject Ross property is entitled to consideration under the Zoning Regulations that were in effect in 1952, thus allowing for the demolition of the existing single-family residence on the property and the restoration of the property to two legal building lots.
P. The current appeal (ZBA Calendar No. 33-2004) of the subject Zoning Enforcement Officer's decision is hereby denied.
(Underlining in original)
"[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation markes omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994) The same standard applies when appeals are taken from a board's action in connection with an appeal from the decision of a zoning enforcement officer. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 515, 264 A.2d 552 (1969).
The Supreme Court has succinctly stated the standards applicable to an appeal such as this one. "Following an appeal from the action of a zoning enforcement officer to a zoning board of appeals a court reviewing the decision of the zoning board of appeal must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board. Caserta v. Zoning Board of Appeals, 226 Conn. 435, 440, 586 A.2d 590 (1991).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
The Board's decision that lots 10 and 11 merged to become a single lot is supported by two grounds stated in the decision, the taxation of the lots as a single parcel for many years and the intent of the owners to merge the lots as evidenced by their construction of a residence on the line separating the two lots.
TAXATION OF LOTS 10 AND 11 AS A SINGLE ENTITY
Our Appellate Court has held that the taxation of lots as a single entity, standing alone, does not mandate a determination that they have merged into a single lot. In Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 164, 556 A.2d 1049 (1989) the plaintiff, sought to have zoning permit revoked, claiming that the certain parcels of land had merged into a single lot and that the division of the property would constitute an unapproved subdivision. The board of appeals' denial of the application to revoke the permit was appealed to the Superior Court which upheld the appeal and found that the merger of lots had taken place. The Appellate Court reversed the trial court noting that the issue of merger was one of fact and that the trial court should not have disturbed the finding of the board that no merger had taken place. The Appellate Court held that neither the filing of a plot plan showing the lots as a single parcel nor the taxation of the lots by the town as a single parcel for many years, justified a finding of merger. The court stated:
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 action physically to demonstrate that he desires to retain it as separate lots. 164 Conn.App. at 164.
Since the tax status of the property, standing alone, does not furnish a ground for the concluding that the owner intended to merge the properties the validity of the Board's decision must rest on whether an intention to merge the lots is supported by other evidence in the record. The other evidence supporting the Board's finding of such an intention are the construction of a residence in 1955 on the dividing line between the two lots by the plaintiffs' predecessors in title, the alteration of that residence in 1966, and the absence of side yard setback variances for both the original construction and the subsequent expansion of the residence.
In paragraphs K and L. of its decision, the Board found that the "common law" merger took place in 1955. If a merger took place at that time, then the tax status over the subsequent years and the 1966 building permit application filed by a subsequent owner would constitute postmerger events providing little basis for inferring the intent of the Simons in 1955.
CONNECTICUT LAW OF MERGER OF LOTS
The court will consider the Board's finding of intent to merge as stated in its decision in light of the body of Connecticut law pertaining to the merger of lots. Connecticut courts have long held that contiguous parcels under common ownership do not necessarily constitute a single lot. Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338 (1952).
Many reported Connecticut cases have considered whether under certain circumstances, two lots might merge and become one parcel. In the recent case of Laurel Beach Ass'n v. Zoning Board of Appeals, 66 Conn.App. 640, 785 A.2d 1169 (2001), the plaintiff property owners' association appealed a decision of a zoning board of appeals affirming the decision of the zoning enforcement officer that a certain parcel of land was a legally non-conforming lot on which a residence could be erected. The issue was whether the lot had merged with an adjacent non-conforming lot. The court stated: "Merger occurs in two situations. In the absence of a change in the zoning provisions, merger is determined by a party's intent to treat multiple lots as a single property. Additionally, as in Milford, merger may be found to exist by operation of law, where a town changes zoning ordinances to implicitly or explicitly merge nonconforming lots with contiguous land owned by the same owner." 66 Conn.App. at 653. (Internal citations omitted.)
Mergers mandated under the provisions of the local zoning regulations were summarized in Neumann v. Zoning Board of Appeals, 14 Conn.App. 55, 50, 539 A.2d 614, cert. denied 208 Conn. 806, 545 A.2d 1103 (1988). "Under many zoning ordinances, where 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." In Neumann the court found that merger of two undersized lots was mandated by the provisions of the zoning regulations. Other cases in this category include Bell v. Zoning Board of Appeals, 27 Conn.App. 41, 604 A.2d 379 (1992) (regulations mandating merger or undersized lots with "adjacent land" held inapplicable in case of two adjoining undersized lots; neither lots could be considered "adjacent land" for purposes of reducing or eliminating nonconformity). Miller v. Zoning Board of Appeals, 36 Conn.App. 98, 647 A.2d 1050 (1994) (no merger found when lot shape requirements could not be met or more nearly satisfied even if adjoining parcels of land in common ownership were considered together).
The second category of merger cases are those in which the intent of the owner of the property to combine adjacent undersized lots and merge them into a single parcel of land is at issue. These cases include Schultz v. Zoning Board of Appeals, supra (adjacent lots lacking sufficient frontage to meet new zoning requirement entitled to separate use when the evidence did not support finding of intent to merge). Molic v. Zoning Board of Appeals, supra (trial court reversed for sustaining an appeal from a board's determination that adjacent parcels had not merged). The court stated "[a]n owner of contiguous parcels of land may merge those parcels to form one tract if he desires to do so. An intent on the part of the owner to do so may be inferred from his conduct with respect to the land and the use which he makes . . . Intent is a question of fact." Molic v. Zoning Board of Appeals, 18 Conn.App. at 164. Marino v. Zoning Board of Appeals, 22 Conn.App. 606, 578 A.2d 165 (1990) (board's finding that undersized lots merged supported by evidence of use as single parcel and topographic necessary to access on lot by traveling over another). Johnson v. Board of Appeals, 35 Conn.App. 820, 646 A.2d 953 (1994) (undersized lots held not to have merged when evidence showed owner's intent to treat as separate parcels). Kulak v. Zoning Board of Appeals, 184 Conn. 479, 440 A.2d 183 (1981) (no merger of adjacent undersized lots, hardship to support a variance found where the lots became non-conforming due to zoning change). Iannucci v. Zoning Board of Appeals, 25 Conn.App. 85, 592 A.2d 970 (1991) (construction of structure on dividing line between two undersized lots found to evidence intent to merge undersized non-conforming lots into a single conforming lot).
Both parties devoted substantial attention in their briefs and oral arguments to Iannucci v. Zoning Board of Appeals, supra. That case involved a situation in which the court, faced with a claim of merger of two adjacent lots, found it significant that a structure had been constructed on the dividing line between the lots. The trial court had sustained an appeal from the denial of a variance seeking separate use of two adjacent undersized lots in Trumbull finding that the reasons given by the board in denying the variance were not supported in the record. One of the reasons stated by the board was its conclusion that the lots had merged. The trial court held that the defendant board had abandoned its claim of merger by failing to file a responsive brief with regard to that issue. The court went on to find that the other stated reasons — lack of hardship, excessiveness of the waivers requested and public opposition — were either legally insufficient reasons or dependent on the finding of merger. The court then remanded the case to the board to determine whether the lots in question were protected by General Statutes § 8-26a(b). The appellate court reversed the decision of the trial court and found that the actions of the plaintiff's predecessors in title in building a residence on the division line between the two lots was sufficient evidence to support a finding of merger. The appellate court considered and rejected the plaintiff's argument that the lots were protected by General Statutes § 8-26a(b). The court held that statute was implicated only when lots might otherwise be merged by operation of a change in the zoning regulations, and had no effect when the merger took place by the actions of the landowners.
In his brief counsel for the Board places great reliance on Iannucci as supporting the Board's factual determination of intent to merge. However Appellate Court's decision in Iannucci does not indicate whether the lots in question were undersized and non-conforming or, full-sized and conforming when a residence was constructed on the dividing line. In the present case, the Board found that a merger had occurred in 1955 when both of the lots in question were full-sized and fully conforming with all lot shape and frontage requirements. Also in contrast to Iannucci, the defendant Board in this case did not conclude that a merger had occurred merely because of the construction of a residence on the dividing line between the two lots. The Board found the intent of Langdon S. Simons, Jr. and Anne M. Simons to merge lots 10 and 11 was established by the construction of the residence in 1955 without first obtaining a variance of the side yard setback requirements of the Darien Zoning Regulations.
EVIDENCE OF INTENT TO MERGE
The record does not contain any direct evidence of the intent of Langdon S. Simons, Jr. and Anne M. Simons to merge their two one-acre lots into a single lot. The evidence from which an intent to merge could be inferred consists of their actions in erecting a residence on the dividing line between the two lots and the tax treatment of the lots as a single parcel. The Board's determination that the merger took place rests on its conclusion that the residence could not have been erected on two lots in the absence of a variance unless the two lots were merged.
The Board's decision also mentions the descriptions of lots contained in the building permit applications submitted by the builders who erected the Simons residence and the 1966 addition. These descriptions cannot be reconciled to each other and do not furnish an independent grounds for inferring that the Simons' intentionally abandoned the right to future separate use of their two full-sized, fully conforming lots.
Under the Darien Zoning Regulations in effect in 2003 and 2004, the Board's conclusion would have ample support in the record. Under Section 210 of those Regulations, "Lot" is defined as "A parcel or plot of land, not divided by streets or property boundaries, which may be occupied by a building or buildings and accessory buildings, together with such open spaces as may be required under these Regulations, and having its principal frontage on a street." "Lot Line, Side" is defined as "Boundary line which separates two lots and one end of which intersects a front lot line." "Setback" is defined as "The minimum required distance from any street line or lot line to the closest point of any building, structure or use, measured in a straight line or lot line from such point." Both lots 10 and 11 would be considered "Lots" under these definitions and the construction of a residence on the boundary between two lots would be inconsistent with the side yard requirements of the regulations. Hence, if the 2003-04 regulations were in effect in 1955 they would furnish a grounds for the inference that the then owner of lots 10 and 11 intended to merge the two lots into one at that time. If such were the case the Board's finding that a merger had occurred in 1955 would have support in the record and the court would be required to dismiss the plaintiff's second appeal.
However, the record shows that the regulations regarding side yard setbacks in effect in 1955 when the Simons residence was constructed were quite different from the present regulations. The record contains a copy of the Darien Zoning Regulations revised to November 3, 1953 which set forth the regulations in effect in 1955. (Record Ex. 44 page 8 paragraphs D and E.) Under those regulations a "lot" or "plot" is defined as "a parcel of land in one recorded ownership occupied or to be occupied by one building and accessory buildings or uses customarily incident to it, including such open spaces as are required by these regulations, and such open spaces as are arranged or designed to be used in connection with such building." (Emphasis added.) A "side yard" is defined as "an open unoccupied space on the same lot with a building situated between the building and the side line of the lot . . ." Under the 1955 regulations lots 10 and 11 could be considered to be a single "lot" or "plot" for side yard setback purposes as long as they remained in the same ownership. Under such regulations there would be no necessity to comply with side yard setback requirements from an interior dividing line between lots 10 and 11 and hence no need to apply for a variance. The court concludes that the Darien Zoning Regulations in 1955 did not require that side yard setbacks be measured from the lot line, as under the present regulations, rather than the property line. Accordingly, the failure of the Simons to seek a variance of side yard setback requirements cannot furnish a basis for inferring their intent to merge their two full-sized, conforming lots into one oversized lot.
In the absence of other evidence supporting a finding of intention to merge, the status of the property as a single tax parcel, standing alone, does not provide an adequate independent ground to support Board's decision. Molic v. Zoning Board of Appeals, supra.
Since the record does not support the grounds on which the Board concluded that determined that Lots 10 and 11 had been intentionally merged in 1955, the court sustains the plaintiffs' appeal in FST CV 04-4001747 S from the August 16, 2004 decision of the Board confirming the ruling of the Zoning Enforcement Officer. The case is remanded to the Board for further proceeding not inconsistent with this opinion.