Opinion
CV105033478.
11-26-2012
David MARENNA v. NORTH HAVEN ZONING BOARD OF APPEALS.
UNPUBLISHED OPINION
JON C. BLUE, Judge.
The question presented in this land use appeal is whether the respondent North Haven Zoning Board of Appeals (" ZBA") erred in determining that two contiguous lots, owned by the appellant, David Marenna, have merged. For the reasons set forth below, the ZBA did not err in making this determination.
The subject property (" Property") is 46 Hartley Street in North Haven. The Property has an area of .34 acres, with 100 feet of frontage on Hartley Street and a depth of 150 feet. It presently contains one single-family house.
The Property is owned by Marenna. Aggrievement is found.
On February 11, 2012, Marenna, through counsel, wrote to the Zoning Enforcement Officer of North Haven (" ZEO") requesting a formal opinion as to whether a Certificate of Zoning Compliance could issue to for the Property. Marenna pointed out that the Property was listed on a 1924 subdivision map as " lots # 48 and # 49." Given this history, he contended that " both lots # 49 and # 48 should be treated as legally existing non-conforming lots." Marenna stated that he desired confirmation of this opinion " so that he might either build upon it himself or market it for sale as a building lot." He thus requested " a certificate of zoning compliance for lot # 49 as a re-existing non-conforming lot, which would permit the issuance of a building permit for the lot subject to the requirements of the building code."
On April 29, 2010, the ZEO denied Marenna's request. He ruled that " 46 Hartley Street is, in fact, a single building lot." He stated that his determination was " based upon the fact that the lot at # 46 is located in a R-12 zoning district and does not meet the requirements of Section 2.1.1.9 (Required Lot Area, Width, Yards, Coverage, Height) of the Planning & Zoning Regulations of the Town of North Haven." In addition, he " noted that 46 Hartley Street has been a single building lot as assessed by the Town of North Haven for some 40-50 years."
On May 14, 2010, Marenna appealed the decision of the ZEO to the ZBA.
On July 15, 2010, following a public hearing, the ZBA affirmed the decision of the ZEO. It did not formally state any reasons for its decision.
On September 3, 2010, Marenna filed a timely appeal of the decision of the ZBA in this court. The appeal was heard on November 20, 2012.
The basic substantive and procedural rules governing this appeal are well established. Substantively, " [W]hether a merger of contiguous parcels of land has occurred depends on the intention of the owner." Carbone v. Vigliotti, 222 Conn. 216, 227, 610 A.2d 565 (1992). " [S]uch an issue is factual." Id. Procedurally, " [c]ourts 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." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 164, 556 A.2d 1049 (1989). Where the ZBA does not formally state any reasons for its decisions, the court is " required to search the record for reasons supporting the board's decision." Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993).
The record in this case has been supplemented pursuant to Conn. Gen.Stat. § 8-8(k)(2). The record, thus supplemented, provides the historical facts relevant to the factual issue of intent.
The Property was originally created as two separate parcels, shown in a 1924 subdivision map. In 1927, both lots were conveyed, in a single deed, by the Branford Realty Corporation to one Anna Paulson. Paulson agreed that she would " erect only a one-family house upon each of said lots."
Shortly after this conveyance a single-family home was erected on one parcel. That home is still standing. In the late 1920s or early 1930s, an early owner built a foundation on the second parcel with apparent intent to build a second home. However, the Great Depression intervened, and no second home was ever built.
The Property was purchased in 1933 by Kendall and Margherita Redfield (the " Redfields"). At some point in the 1930s or 1940s, the Redfields filled in the foundation on the second parcel. The Redfields sold the Property in 1957. The second foundation has remained filled to the present time.
From 1924 to approximately 1956, the Property was listed on the North Haven Grand list as two separate properties for purposes of taxation. From 1956 to the present, it has been listed as a single property.
Marenna acquired the Property in two stages. In 1988, he acquired a 50% interest in the Property from his parents, Vincent R. Marenna and Carmela R. Marenna. In 2005, he acquired the remaining 50% interest from his ex-wife, Beth Marenna. Each of his deeds describes the Property as " [a] certain piece or parcel of land with the buildings and all other improvements thereon situated in the Town of North Haven, County of New Haven, and State of Connecticut, known as # 46 Hartley Street, being Lots # 48 and 49 on ‘ Map of Whitney Ridge Manor, North Haven, Conn., surveyed by Alexander Cahn, August 1924, scale 1'= 100, " on file in the North Haven Clerk's Office."
A mountain of historical evidence has been introduced to support the arguments of the contending parties that one or another historical owner had one or another intention with respect to merger. If the Court were trying the case de novo, a thorough discussion of this evidence would be necessary. But that is not the case. In the context of this administrative appeal, as mentioned, the obligation of the Court is to search the record for reasons supporting the ZBA's decision.
Connecticut law turns on the intent of the owner with respect to merger. As juries are instructed every day, what a person's intention was is usually a matter of evidence. In this particular matter, the circumstantial evidence is powerful.
The most powerful circumstantial evidence in this case is the history of the second foundation built on the Property in the late 1920s or early 1930s. The initial building of this foundation is powerful circumstantial evidence that the owner of the Property at the time (an owner who preceded the Redfields in title) had the intent to use the Property as two separate lots. But the filling in of that foundation by the Redfields in the 1930s or 1940s is equally powerful circumstantial evidence that the Redfields, at the time, intended to merge the lots and use them, functionally, as a single lot.
The Redfields made other statements, including reports to North Haven taxing authorities and language in a 1957 deed, that could be construed as evidence of an intent to treat the Property as two separate units. But this is not a trial de novo. The task of the Court is not to weigh evidence. It is to determine whether the record contains evidence supporting the ZBA's decision.
In addition to evidence establishing the filling-in of the second foundation, other evidence supporting the ZBA's decision appears in the record.
As mentioned, the Property has been taxed as a single unit since approximately 1956. While this is not, in itself, determinative of the question of intent, " such factors may ... be considered by the board as part of the evidentiary foundation to support a finding of merger if they are relevant and probative." Marino v. Zoning Board of Appeals, 22 Conn.App. 606, 609, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990). In addition, in its long chain of title, the Property has invariably been transferred from owner to owner by a single deed. See Laurel Beach Ass'n v. Zoning Board of Appeals. 66 Conn.App. 640, 654, 785 A.2d 1169 (2001). Finally, at least since 1933, when the Redfields purchased the Property, " the adjacent tracts have been used as a single property over a long period, even where the deed description references multiple lots from a map filed in the land records." Id.
Even if these additional factors were to be ignored, the filling in of the second foundation by the Redfields in the 1930s or 1940s is well-established in the record. This action constitutes substantial circumstantial evidence that the Redfields, at the time, intended the two adjacent parcels " to be used ... as a unit" and constitute " a single ‘ lot.’ " Neumann v. Zoning Board of Appeals, 14 Conn.App. 55, 61, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988). " They could not thereafter be redivided into two lots." Id.
The Court is mindful that " this type of reduction is a recognized goal of zoning and a valid purpose of merger regulations." Goulet v. Zoning Board of Appeals, 117 Conn.App. 333, 341, 978 A.2d 1167, cert. denied, 294 Conn. 909, 982 A.2d 1082 (2009). The ZBA's conclusion in this case that a merger had occurred was legally and logically correct and supported by the facts in the record.
The appeal is dismissed.