Opinion
No. CV 03-0827804
March 13, 2006
MEMORANDUM OF DECISION
Plaintiff, the Balf company, appeals from a decision of the defendant, Zoning Board of Appeals of the Town of Manchester denying plaintiff's appeal from an order of the Manchester Zoning Enforcement Officer denying plaintiff's application for a building permit to construct a concrete processing plant on the property plaintiff was selling to Tilcon, Inc. The ground for the defendant's denial was that plaintiff had sold off a portion of its land in 1989 to its neighbor and the sale to Tilcon, Inc. constituted a division of the land into three or more parts which required plaintiff apply for approval of a subdivision, as defined by Conn. Gen. Stat. § 8-18.
That section provides "`subdivision' means the division of a tract or parcel of land into three or more parts or lots . . . for the purpose, whether immediate or future, of sale or building development . . ."
The facts are as follows:
In 1989 the plaintiff was the owner of 7.55 +/- acres of land on North Street in Manchester. The land abutted property owned by Donald Gay on which Gay operated a catering and banquet business known as Jester's Court at 748 Tolland Turnpike. A part of Gay's building encroached on plaintiff's property. Gay requested plaintiff sell him a 60 ft. wide strip of land running the length of the abutting property to solve the small encroachment problem, but more importantly, to enable Gay to acquire sufficient land to enlarge his existing building. The plaintiff agreed to sell Gay a strip that amounted to 36,760 sq. ft. or .83 acres at the price of $35,000. That permitted Gay to construct a 30 ft. x 110 ft. addition to his existing building in compliance with the Town's zoning regulations. On or about January 10, 2003, the plaintiff agreed to sell to its affiliate Tilcon, Inc. 3.95 acres and lease the parcel back to enable plaintiff to construct on it a concrete plant. The plaintiff then applied for a building permit from the Manchester Building Department for construction of the plant on the leased property. The Manchester Zoning Enforcement Officer on June 9, 2003 denied the application for the building permit on the grounds that: (1) the deed by plaintiff to Gay in 1989 and the deed by plaintiff to Tilcon, Inc. in 2003 constituted a division of plaintiff's property to three or more parcels and thus required subdivision approval; (2) the application did not include an erosion and sediment control plan; (3) the site draining plans had not been approved by the director of public works.
The plaintiff appealed the order of the Zoning Enforcement Officer to the Zoning Board of Appeals solely on the first ground. The Zoning Board of Appeals held a public hearing and on July 23, 2003, denied the appeal. The discussion among the board members was that the sale to Gay was not a property line adjustment, but, rather, enabled Gay to expand his business; that it constituted the first division of plaintiff's property; that the sale to Tilcon, Inc. constituted the second division and that resulted in plaintiff's property being divided into three parts which, as the Zoning Enforcement Officer determined, required subdivision approval.
The parties concede that plaintiff has an interest in the subject property and consequently is aggrieved pursuant to Section 8-8(1).
As to the other grounds for a denial of the building permit, the record has been supplemented by a letter from the Zoning Enforcement Officer, dated March 30, 2004, to the effect "the lack of an erosion and sediment control plan and the lack of review by the Public Works Department with regard to drainage have been since accomplished." The letter further states that "upon the determination by the Superior Court and the exploration [sic] of the required appeal period, that zoning compliance has been achieved, a required Certificate of Zoning Compliance would issue in due course." As a consequence, upon resolution of this case in favor of the plaintiff, the plaintiff would receive the practical remedy of having a building permit issued.
Defendant claims mootness on the grounds of expiration of the permit. Section 29-263 provides, in relevant part, that "such permit shall be issued or refused in whole or in part, within thirty days after the date of an application." Thus this section requires that the building inspector act within thirty days; it does not say the application expires after thirty days. Moreover, such a situation falls within the "capable of repetition, yet evades review" doctrine. A matter is capable of repetition yet evading review when (i) a challenged action is in its duration too short to be fully litigated prior to its cessation or expiration and (ii) there is reasonable expectation that the same complaining parties would be subjected to the same action again. Connecticut Foundary Company v. International Ladies Garment Workers Union, 177 Conn. 17 (21 (1975)). Here if the permit application expires within thirty days, it will always expire before the decision to deny it can be addressed by the court. Also, when the plaintiff reapplies for the permit, if this court does not act, there is every reason to believe that the decision of the Zoning Enforcement Officer and the Zoning Board of Appeals will deny the permit on the failure to apply for subdivision approval. Thus, even if the application expired, the court can afford practical relief because this matter squarely fits within the "capable repetition, yet evading review" doctrine. As a consequence, the court concludes the case is not moot and the court has jurisdiction to resolve it.
The substantive issue in this case is whether or not the sale by plaintiff of a portion of its land to Gay in 1989 constituted a division of his land so that the subsequent sale of another portion of its land to Tilcon, Inc. in 2003 resulted in a division of its land into three or more parts, requiring subdivision approval, and, thereby, justifying the Zoning Board of Appeals upholding a denial of a building permit to the plaintiff.
The plaintiff argues that the sale to Gay "did not create a new lot but was an accommodation to a neighboring property owner which increased the size of that neighbor's lot to correct an encroachment and to allow the neighbor to remodel his existing building." It cites Goodrich v. Zoning Board of Appeals, 58 Conn.App. 760, 765, cert. denied, 254 Conn. 930 (2000) for the proposition that "A minor lot line adjustment between two existing lots, whereby no new lot is created, does not constitute a `subdivision' as defined by Section 8-18 and, thus does not require municipal approval." In Goodrich a person owned two adjoining lots. He sold one lot to a purchaser, making a slight adjustment of the boundary line between the two lots involving a triangular area of land measuring 0.005 acres, Subsequently he sold the second lot to another purchaser. Ultimately the question the court had to decide was whether that boundary line revision between the two lots constituted a first division within the meaning of Section 8-18. The court held, "In this case, the land transferred from lot two to lot one was never divided from a whole parcel of land; rather it remained, at all times, as part of a larger parcel of land. Furthermore, the land never was sold separately or intended to be used for development, it simply was added to the adjacent parcel." Id. at 765.
In the instant case, plaintiff's sale to Gay was not a minor conveyance of a tiny strip of land to achieve a boundary line adjustment. A correction for the encroachment of Gay's building on plaintiff's land might have so qualified. But in this case plaintiff conveyed .83 acres to Gay for $35,000. This not only solved the encroachment problem, but enabled Gay to enlarge his premises by constructing a 30 x 110 addition to his building.
In Goodrich the court noted that the land transferred from lot two to lot one "was not divided from the larger parcel that made up both lots." Here the land plaintiff sold to Gay was divided from plaintiff's property.
The plaintiff argues that the land sold to Gay merged with Gay's land and so did not become a separate lot or part within the meaning of Section 8-18.
Plaintiff points out there were two parcels before the sale and two parcels after. In Derham v. Brown, 30 Conn. L. Rptr. 155 (July 19, 2001, Peck, J.), an owner of two parcels of land revised the boundary line between the two parcels. The court held that "Two lots, lots 24A and parcel 12, existed prior to Paula Brown's boundary line revision and two lots existed after the boundary line revision." It cited McCrann v. Town Planning Zoning Commission, 161 Conn. 65, 70 (1971) for the proposition that combining two lots to make one parcel does not constitute a division that qualifies for a subdivision.
But here the plaintiff is not adjusting the boundary line of two lots owned by a single landowner as in Derham, or combining two lots owned by the landowner into one parcel as in McCrann. The plaintiff sold a parcel to Gay for $35,000 to be used by Gay to further develop Gay's land. Adding the parcel to Gay's land does not make it less of a division from plaintiff's property. The fact Gay did not sell the land transferred to him by the plaintiff is irrelevant.
If a landowner could sell off any number of portions of his land to a neighbor who merged them with his land and thereby escape subdivision regulations, it would make a mockery of subdivision law. Moreover, the portion plaintiff sold to Gay made Gay's piece different than it previously had been, and, more significantly, enabled him to intensively develop it.
The exception from Section 8-18 for minor lot line adjustments makes sense. As stated by the court in Goodrich v. Zoning Board of Appeals, supra, 766, requiring that every boundary line adjustment needed subdivision approval "would result in a significant adverse impact on land use and real estate law in Connecticut. To accept every minor adjustment of property, even those that are inadvertent, as a `subdivision' under Section 8-18 would lead to a substantial increase in applications to municipal planning commissions and in land use appeals."
Here there was not a minor line adjustment. Plaintiff's sale of .83 acres of land to Gay in 1989 was a division of its land within the meaning of Section 8-18 and, together with the subsequent sale of 3.95 acres to Tilcon, Inc. constituted a division of plaintiff's land into three or more parts requiring subdivision approval. As a result, the defendant Zoning Board of Appeals was correct in upholding the Zoning Enforcement Officer's denial of plaintiff's application for a building permit. This appeal is dismissed.