Opinion
NNHCV156056196S
04-25-2017
Thomas T. Rooney et al. v. Zoning Board of Appeals of the Town of Madison et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Steven D. Ecker, J.
This is an administrative appeal brought by plaintiffs, Thomas and Tammey Rooney, from a decision of the Zoning Board of Appeals of the Town of Madison (" Board") sustaining the issuance of a certificate of zoning compliance by the Town of Madison's Zoning Enforcement Officer (ZEO) in connection with plans submitted by defendants John and Julie Golicz to develop an unimproved lot, owned by the Goliczs, abutting the Rooneys' property on Grove Avenue in Madison. The Rooneys contend that the plans at issue are not compliant with applicable zoning requirements because (1) the proposed building lot is part of an illegal " subdivision" as defined by state law and Section 2.1 of the Madison Subdivision Zoning Regulations, and (2) the lot does not meet the frontage requirements set forth in Section 2.4 of Madison's General Zoning Regulations. The appeal is dismissed for the reasons set forth in this memorandum.
As a technical matter, the ZEO's determination does not approve building or development plans per se; it is not a building permit. Rather, the ZEO determined that the subject property (known as Lot 118) complies with lot requirements and frontage requirements for residential building lots under the Madison zoning ordinances. As the court understands it, the ZEO's determination allowed the Goliczs to record in the Madison land records a map (Map 5097, dated November 25, 2013) showing reconfigured lot lines for properties owned by them at 2 Grove Avenue (Map 28, Lot 118) and 36 Liberty Street (Map 28, Lot 119). The significance of the ZEO's determination lies in his express finding that Lot 118, as reconfigured in Map 5097, is a compliant building lot under the zoning regulations. Based in material part on the ZEO's compliance determination, a building permit was thereafter issued, and the Rooneys then took their appeal to the Board.
FACTS AND PROCEEDINGS
History of the Willard Properties From 1932 through 1972
The background facts, though elaborate in some respects, are relatively straightforward and largely undisputed. Almost all of the real estate involved in this case was, long ago, part of a larger tract owned by Edward Willard (the " Original Parcel"). Edward had three daughters, Nellie Willard, Vida Willard, and Susan Clark. In 1932, Edward sold part of the Original Parcel to his daughter Susan Clark and her husband, Jay Clark. (For ease of reference, it will be useful in this memorandum to refer to the parcel conveyed in 1932 to Susan and Jay Clark as " Parcel C." The property retained in 1932 by Edward Willard will be referred to as the " Parent Parcel.") Edward died in 1935, at which time his three daughters each became owners of an undivided one-third interest in the Parent Parcel. In 1958, one of the daughters, Nellie, died, resulting in the two remaining daughters, Vida Willard and Susan Clark, each holding a one-half undivided interest in the Parent Parcel.
The " Parcel C" designation is not random. As we shall see, alphabetical designations (A, B, C, D & E) eventually were formally assigned to different parts of the Original Parcel created over time in various documents recorded in the Madison land records.
In 1962, Vida and Susan engaged in a transaction involving the Parent Parcel. Vida conveyed her interest in the rear (western) portion of the Parent Parcel to Susan. Vida retained her one-half interest in the front (northeastern) portion of the Parent Parcel, but granted Susan a twenty-five (25) foot right-of-way over that front parcel. (For ease of reference, it will be useful to refer to the rear parcel conveyed to Susan as " Parcel A; " the front parcel, still owned by Vida and Susan, will be referred to as " Parcel B." See n.2 above.) Thus, as of 1962, the Original Parcel had become three parcels. Parcel A, the rear (westernmost) and largest parcel, was owned by Susan. Parcel B, owned by Susan and Vida (with Susan also holding a right-of-way over Parcel B to Parcel A), was bordered on the east by Parcel A and on the south by Parcel C. Parcel C, owned by Susan and her husband since 1932, was bordered on the east by Parcel A and on the north by Parcel B.
The conveyances most crucial to this litigation occurred ten years later, in 1972, when Susan Clark undertook a series of conveyances involving all of the parcels in which she held an interest (Parcels A, B and C). These conveyances are best understood by reference to Map 1816, which was prepared professionally in February 1972, and filed with the Madison Town Clerk. Map 1816 shows the land once forming the Original Parcel now as five parcels, as a result of two thin rectangular strips (designated " Parcel D" and " Parcel E") being carved out of the eastern border of Parcel A (owned by Susan). On or about March 28, 1972, Susan conveyed Parcels D and E, respectively, to the owners of the abutting property to the east--Parcel D to the owners of Parcel C (Susan and her husband Jay), and Parcel E to the owners of Parcel B (Susan and the estate of her deceased sister Vida Willard). These transfers were made for strictly nominal consideration. Susan also conveyed Parcel A, as reconfigured (i.e., without the strips designated Parcels D and E), to an entity known as Premier Title and Mortgage Company, for $25,000.
Parcel D contained 1425 square feet, Parcel E contained 945 square feet.
The deeds involved in the 1972 conveyances all refer to Map 1816 and the parcel designations contained therein.
No one disputes the fact that these conveyances occurred. Their legal significance, however, is hotly disputed, and that dispute lies at the heart of the present proceedings. Additional facts regarding the 1972 conveyances, relevant to this dispute, will be addressed later in this memorandum.
Relevant Background Facts and Zoning-Related Events/Proceedings After 1972
It will be useful to track separately the ownership of Parcel A, Parcel B (and E), and Parcel C (and D) from 1972 to the present time. Facts concerning adjoining parcels will also be noted as necessary.
The court's references to " Parcel B (and E)" and " Parcel C (and D)" is awkward, and unnecessary in the sense that these paired parcels at all times have each remained under common ownership, since their creation in 1972. The Board determined that each pair has effectively merged, such that there remains only Parcel B (comprised of Parcels B and E shown on Map 1816) and Parcel C (comprised of Parcels C and D shown on Map 1816). The court uses the " Parcel X (and Y)" designation for the sake of clarity only.
Parcel A, owned by Premier Title and Mortgage Company since 1972, was sold to an individual named Carol McGuire on March 16, 1995. In March 1997, McGuire sold Parcel A to the defendants, John and Julie Golicz. The Goliczs still own Parcel A, and the present dispute arises from their desire to build a house there.
The record contains various designations for the numerous parcels of land in question, in part because the land records/assessor's maps use different references at different times, and in part because various pieces of land have been carved out or added over the years. Most importantly, Parcel A is also referred to in this memorandum as " Parcel A/Lot 118" or simply " Lot 118, " a reference taken from Assessor's Map 28, Lot 118. It is the court's understanding that Lot 118 and Parcel A, though not identical, may be considered synonymous for present purposes. The correct nomenclature is not crystal clear in the record at times.
Parcel B (and E) was owned solely by Susan Clark after her sister Vida Willard died. Clark herself passed away some time later, and, on February 28, 1994, her estate sold Parcels B and E to defendant Julie Golicz. A single deed conveyed the property to Golicz, though separate schedules were used to describe the metes and bounds of the two parcels (B and E). On July 24, 1997, the Goliczs sold Parcel B (and E) to the Rooneys, plaintiffs here. (The property has a street address of 4 Grove Street, Madison.) The record discloses two additional facts regarding the Rooneys' 1997 purchase of Parcel B (and E) from the Goliczs. First, in an agreement appended to and referenced in the deed, the Rooneys were granted a right of first refusal to purchase the rear lot (Parcel A) from the Goliczs. Second, the Rooneys were aware from this deed and related agreement not only that the lot purchased by them was subject to the right-of-way providing access across their property (Parcel B (and E)) to the rear lot (Parcel A), but also that Parcel A was referenced in land records (going back at least to 1972) as a building lot. The pertinent language in the 1997 Goliczs-to-Rooney deed references the right-of-way originally " described in a deed from Vida A. Willard to Susan Clark on February 5, 1962 in Volume 94 on Page 599 of the Madison Land Records[, ]" and goes on to state:
John Golicz evidently became a co-owner of the property at some time between February 28, 1994 and July 24, 1997.
This is the 1962 conveyance creating two parcels--what was later to become Parcel A (the rear lot), and what was later to become Parcel B (the lot burdened by the right-of-way, later sold by the Goliczs to the Rooneys).
Said [utility] easement and right of way shall be used in common with the owners of property now [as of 1972] owned by Susan W. Clark and the Estate of Vida M. Willard, their heirs and assigns, and shall be subject to the proviso that upon the construction of a dwelling house on the above described Parcel A, the cost of maintenance and upkeep of any driveway located within the bounds of said right of way shall be shared equally between the owners of [P]arcel A and the owners of property now owned by Susan W. Clark and the Estate of Vida M. Willard [i.e., Parcel B (and E)] . . . [Emphasis added.]
Parcel C (and D), which had been owned by Susan and Jay Clark, was sold by the estate of Susan Clark to a couple named William and Isabelle Ennis in 1992. The Ennises sold the property to the current owners, Francis and Samantha Pullaro, in 2009. The Pullaros are not parties in this litigation.
In 1997, the Goliczs purchased another piece of land, of irregular configuration, abutting Parcel A on the north. This additional land, part of " Lot 119" on Assessors' Map 28, curls around in a twenty-five-foot-wide swath and connects to Liberty Street. The Goliczs apparently purchased this additional land so that Lot 118/Parcel A would have the street frontage and total area necessary to qualify as a separate building lot under the relevant zoning regulations. The Goliczs took steps to realize their plan on June 5, 2013, and again on December 22, 2014, by filing maps on the Madison land records reflecting lot-line adjustments and other zoning-related features of Lots 118 and 119.
On November 5, 2014, the Goliczs submitted a Building Permit Application to the Town of Madison's Building Department for a permit to construct a residence on Lot 118. In response, the Goliczs received a building permit on January 14, 2015, based on the ZEO's issuance of a certificate of zoning compliance. Plaintiffs challenged the ZEO's decision in a timely appeal to the Board, filed on or about February 5, 2015, and amended on February 11, 2015.
The Rooneys' appeal raised two primary issues. First, the Rooneys claimed that the building lot at issue was the result of an illegal subdivision that was never approved as required under applicable law. Second, the Rooneys claimed that the lot did not have the necessary frontage required under the zoning regulations.
The Board conducted public hearings on plaintiff's appeal on May 5, 2015, June 2, 2015, and July 7, 2015. The Rooneys and Goliczs were represented by counsel, each of whom made extensive presentations and submitted numerous exhibits on behalf of their respective clients. Tammey Rooney and John Golicz testified, as did a number of neighbors. The ZBA also heard from Thomas A. Stevens, a professional engineer and land surveyor hired by the Goliczs. Attorney Gelderman, the ZBA's outside counsel, also spoke.
At the end of the hearing on July 7, 2015, the Board unanimously voted to dismiss the appeal and uphold the decision to issue the building permit, based on its conclusion that Lot 118 complies with the zoning laws at issue. The unanimous vote came on the following motion:
I'll make a motion . . . that the February ninth 2015 [appeal] by Tom and Tammey Rooney from the decision of John DeLaura, Madison Zoning Enforcement Officer, with respect to Assessor's Map 28, Lot 118, 2 Grove Avenue, is hereby dismissed and the decision that such lot complies with the requirements of the Madison Zoning Regulations and is entitled to a building permit is upheld for the following reasons: Substantial evidence was presented during the public hearing that the lot has adequate frontage on Liberty Street. Madison Zoning Regulations do not require access to a lot be obtained where frontage is determined, merely that the lot have twenty-five feet of frontage on a public street. As long as the lot has available access and access is not legally precluded at the frontage location, the frontage requirement is met. Substantial evidence was also presented to the Board that Map 1816 was not a subdivision map since three or more parcels were not shown thereon for the purpose of sale or building development. The Board finds that the creation of Parcels D and E as shown on Map 1816 was for the purpose of transferring beach rights to the owners of Lots B and C by effectively merging the parcels with Lots B and C and not for the purpose of sale or building redevelopment or building development. The Board finds that since Map 1816 is not a map of subdivision or resubdivision, the lot line adjustments to Lots 118 and 119 were lot line revisions that did not require approval from the Planning and Zoning Commission and Lot 118 is a valid building lot that complies with the Madison Zoning Regulations.
The present appeal was timely filed by the Rooneys pursuant to General Statutes § 8-8.
DISCUSSION
I. AGGRIEVEMENT AND STANDING
The Rooneys own property abutting the land subject to the ZBA's decision, and therefore are " aggrieved persons" under General Statutes § 8-8(a)(1) for purposes of this appeal. The Goliczs argue that the Rooneys nonetheless do not have standing to appeal. They base this contention on the fact that the Rooneys' property interest is encumbered by a right-of-way which grants the owner(s) of the rear lot (Lot 118/Parcel A), among other things, the right of " access and egress by foot and by vehicle, " and which expressly includes the proviso that the grantors and grantees contemplate " construction of a dwelling house on the above described parcel A . . ." In light of this express limitation on the Rooneys' legal interest in the abutting property, the Goliczs argue that the Rooneys " did not suffer an injury from the ZEO's decision, because they already were contractually obligated to have a building lot behind them."
This argument has its appeal, in the sense that there appears to be a rather stark inconsistency between the position taken by the Rooneys in this litigation, on the one hand, and the expectations of the parties manifested in the deed and related documents created when the Rooneys purchased the land from the Goliczs in 1997. The conveyance deed unequivocally describes a right-of-way over the Rooney property (Parcel B (and E)) for the purpose of providing vehicular access to the Golicz property (Parcel A), and includes the proviso that the cost and upkeep of a " driveway" on the right-of-way shall be shared equally between the Rooneys and the Goliczs " upon construction of a dwelling house on the above-described Parcel A." The Rooneys manifestly were aware of this stipulation at the time they purchased Lot B, and even went so far as to negotiate a side agreement with the Goliczs giving the Rooneys a right of first refusal to purchase the rear lot so that they would retain the ability to prevent a third-party buyer from constructing the referenced house. This side agreement itself expressly refers to a right of first refusal to purchase " the adjoining building lot rear parcel ." Unless there are facts outside of the record that would justify the Rooneys' current efforts to block the Goliczs from building a house on Lot A, the court cannot fault the Goliczs from feeling ill-served under these circumstances.
The Rooneys argue that these references to the construction of a " dwelling house" and " building lot" on Parcel A do not preclude them from arguing that the lot was not a legally permissible building lot in 1997 under the Regulations, and, as currently configured, is still not a legally permissible building lot under the Regulations. They emphasize that they never actually agreed, in any deed or contract, to forgo their right to raise zoning objections to building plans for Parcel A. This argument strikes the court as contrived, and the court doubts that it would carry considered on its merits if raised in the context of a litigation involving issues of contractual intentions, good faith, waiver, estoppel, etc. The issue here, however, is solely jurisdictional, i.e., whether the Rooneys have standing to initiate and prosecute this zoning appeal.
But the Rooneys' about-face, if that description fits, does not deprive them of standing to contest the zoning decisions at issue. As noted, they are statutorily aggrieved by virtue of their status as abutting landowners. A party who is aggrieved presumably also has standing. See Gladysz v. Planning and Zoning Comm'n, 256 Conn. 249, 255, 773 A.2d 300 (2001) (explaining difference between two concepts, and stating that standing requirement is " less stringent" than aggrievement requirement); MacKenzie v. Planning and Zoning Comm'n, 146 Conn.App. 406, 419 n.10, 77 A.3d 904 (2013) (observing that a person " may derive standing to appeal based solely upon his status as an abutting landowner" under General Statutes 8-8(a) (citation and quotation marks omitted)). The court therefore rejects the Golicz's jurisdictional challenge.
II. STANDARD OF REVIEW
The Supreme Court has usefully described at length the various principles and rules governing the standard of review in zoning appeals:
Judicial review of an administrative agency's decision differs depending on whether the court is reviewing a factual or a legal determination. When " the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence." Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 721, 780 A.2d 1 (2001) [emphasis removed]. Under this standard, the " [c]onclusions reached by [the board] must be upheld by the [reviewing] 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 [board] . . . The question is not whether the [reviewing] court would have reached the same conclusion . . . but whether the record before the [board] supports the decision reached . . . If a [reviewing] 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 commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).
When the administrative agency has made a legal determination, however, the scope of review is ordinarily plenary. Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. at 721. " Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. [In turn] [t]he trial court ha[s] to decide whether the board correctly interpreted the [applicable regulations] and applied [them to the facts] with reasonable discretion . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . [T]he plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-98, 784 A.2d 354 (2001).
Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . .
Finally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . and the words employed therein are to be given their commonly approved meaning. Id., at 698-99.Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 32-34, 19 A.3d 622 (2011); accord Villages, LLC v. Enfield Planning and Zoning Commission, 149 Conn.App. 448, 456, 89 A.3d 405 (2014).
The Rooneys ask the court to apply the " substantial evidence" standard to the issues raised by them here. See Plaintiffs' Brief at 10. More specifically, they argue that there is not substantial evidence in the record supporting the Board's determinations that (1) the subdivision regulations are inapplicable to the subject property because no " subdivision" of that property took place within the meaning of the relevant state statute and zoning regulations, and (2) the town's frontage requirements were met.
In the court's view, the Rooneys' claim of error on the frontage issue presents a pure issue of law, and will be reviewed under the standard applicable to such claims. See n.19 below.
III. THE " ILLEGAL" SUBDIVISION CLAIM
The Rooneys contend that the current configuration of Lot 118 was part of an " illegal" subdivision, and therefore could not properly be approved as a building lot. Defendants disagree. The controlling legal framework is not in dispute. Section 2.1 of Madison's Subdivision Regulations states:
In accordance with the provisions of C.G.S. § 8-25, no subdivision of land shall be made and no land in any subdivision shall be sold or offered for sale until a plan for such subdivision has been approved by the [Planning and Zoning Commission of the Town of Madison].
The reference to General Statutes § 8-25 is intended to acknowledge the controlling authority of the statute requiring local planning commissions to adopt regulations governing the subdivision of land before approving any application for a plan for subdivision. " Subdivision" is defined in § 1.2 of the Madison Subdivision Regulations as follows:
" Subdivision" as defined in C.G.S. § 8-18 means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the Commission on April 10, 1953, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes re-subdivision.
General Statutes § 8-18 defines " subdivision" using the same language, except that it contains a generic effective date (i.e., " three or more parts or lots made subsequent to the adoption of subdivision regulations by the [planning commission]") to allow local conformance based on the applicable effective date under the regulations of any particular commission.
This definition creates a two-part conjunctive test to determine whether a subdivision has been created within the meaning of applicable state and local law: (1) has there been a division of land into three or more parts or lots?, and (2) was the division made for the purpose, whether immediate or future, of sale or building development? See McCrann v. Town Plan and Zoning Comm'n, 161 Conn. 65, 70, 282 A.2d 900 (1971); R. Fuller, 9 Connecticut Practice Series, Connecticut Land Use Law and Practice § 10:9, at 315 (5th ed. 2015). The Rooneys argue that a subdivision was created because both parts of this test are satisfied on this record, while the Goliczs argue that neither component of the test has been satisfied. The Board's view is that the second part of the test is not met, based on its factual finding that the division of land in 1972 was made by Susan Clark " for the purpose of transferring beach rights to the owners of Lots B and C by effectively merging the parcels with Lots B and C and not for the purpose of sale or building redevelopment or building development." TR 7/7/15, at 37-38 (resolution upholding ZEO's issuance of building permit).
Before addressing the merits, one procedural issue requires attention. The governing legal framework plainly contemplates that subdivision decisions will be made by the municipal planning commission rather than a zoning officer or zoning appeal board. The present dispute did not pass through the Madison planning commission. At no point, in 1972 or thereafter, did the owners of Parcel A/Lot 118 ever seek subdivision approval, and it would have been odd if any of them had done so, because their view was that no such approval was necessary. Nor did the Rooneys ever request the planning commission to disapprove the alleged subdivision of Parcel A/Lot 118. See General Statutes § 8-26. As a result, we have a zoning board of appeals, rather than a planning commission, deciding whether a subdivision exists. This court is persuaded that the route taken by the parties in this respect, though perhaps irregular, does not raise any jurisdictional concerns. See Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 765-66, 755 A.2d 329 (affirming a zoning board of appeals' subdivision determination in same procedural posture), cert. denied, 254 Conn. 930, 761 A.2d 753 (2000).
Section 8-26 among other things authorizes planning commissions to approve, modify and approve, or disapprove plans for subdivisions already in existence but which were not submitted to the commission for required approval at the time created. On appeal, the Board suggests that the Rooneys should have sought planning board disapproval if they wanted to raise the subdivision issue, and it argues (without actually arguing) that " it can be argued that the failure of [the Rooneys] to make an application to the P& Z estops them" from challenging the Board's decision. Board's Brief at 12-13. This point was not raised at the administrative level and will not be decided here.
The court's substantive analysis focuses on the second (" purpose") prong of the subdivision test. Although the Goliczs contend that even the first (" division") prong of the subdivision test cannot be satisfied on this record, the Board evidently believes that the considerations relied on by the Goliczs in making that argument are, instead, best viewed in support of the " purpose" part of the analysis. S ee Board's Brief at 8 (agreeing, without elaboration or analysis, that the 1972 conveyances resulted in a " division" of the subject property into three or more parts, and thus met the first part of the subdivision test). For the sake of simplicity, and because it is the Board's administrative decision that is under review, the court will follow the Board's approach on appeal by focusing on the " purpose" prong of the analysis.
These considerations primarily involve the fact that the two additional parcels (D and E), created in 1972, (1) are properly characterized as " lot-line revisions" rather than a " division" of land, (2) were conveyed within the family, for no consideration, and (3) were quickly " merged" back into the original parcels (C and B, respectively). The Goliczs, citing the Goodridge case, that these factors could and should be marshaled in support of a finding that there has been no " division" of the land within the meaning of the applicable law. See pp. 16, 18 below.
The Board's central determination on the " purpose" issue is straightforward and explicit:
Substantial evidence was . . . presented to the Board that Map 1816 was not a subdivision map since three or more parcels were not shown thereon for the purpose of sale or building development. The Board finds that the creation of Parcels D and E as shown on Map 1816 was for the purpose of transferring beach rights to the owners of Lots B and C by effectively merging the parcels with Lots B and C and not for the purpose of sale or building redevelopment or building development.
There is substantial evidence in the record supporting this determination. More particularly, there is good reason to believe that Susan Clark's purpose in creating Parcels E and D in 1972--the " division" of land that the Rooneys claim first triggered application of the subdivision requirements--was to ensure that Parcels B and C enjoyed beach rights to Seaview Beach, a waterfront beach area south of Seaview Avenue on Long Island Sound; perhaps more accurately, the purpose of the " division" was to restore beach rights that Parcels B and C may have inadvertently lost due to imprecisions in the 1932 and 1962 conveyances carving up the Original Parcel.
The facts underlying this determination are contained in the record. It is undisputed that the Original Parcel enjoyed deeded beach rights to Seaview Beach. However, in 1932, when Edward Willard conveyed what was to become Parcel C to his daughter Susan and her husband, the relevant deed did not include any express reference to beach rights. As a result, Parcel C arguably did not enjoy beach rights after 1932, prior to the 1972 conveyances. The same circumstance occurred with respect to what became known as Parcel B in 1972, which was the lot created in 1962 when Vida Willard and Susan Clark divided the Parent Parcel into what later became known as Parcel A and Parcel B. The deed conveying Vida's interest in the western parcel (what later became Parcel A) to Susan did not expressly reserve beach rights running in favor of the parcel that would later become known as Parcel B. Thus, before the creation and conveyance of Lots D and E in 1972, Parcel A was (at least arguably) the only one of the three parcels (A, B and C) retaining beach rights. Lots D and E were small pieces of land carved out of Lot A in 1972 for the purpose of ensuring that Lots C and B (respectively) had deeded rights to Seaview Beach.
Plaintiffs contend that careful examination of the historical record demonstrates that the beach rights in Parcels B and C were never actually extinguished. That is not the question, however. The question is whether there is substantial evidence in the record supporting the conclusion that Susan, in 1972, wished to remove all possible doubt about the status of the beach rights attached to Parcels B and C. It is clear from the record that a reasonable person could have entertained such doubt, and Susan acted for the purpose of eliminating that doubt.
The Rooneys argue that the ZBA's finding relating to " beach rights" is based on pure speculation. The objective evidence, the Rooneys argue, demonstrates that the purpose behind Susan's creation of Parcels D and E was the sale of various parcels--Parcel A to Premier Title and Mortgage Co., Parcel D to Susan and her husband, and Parcel E to Susan and the estate of her sister Vida.
The Rooneys' argument is based on a flawed understanding of the " purpose" prong of the subdivision test, and a misapprehension of what the evidence showed about Susan Clark's " purpose" in creating Parcels D and E. Again, not every division of land into three or more parcels, recorded on the land records, is a " subdivision" of land within the meaning of General Statutes § 8-18 and the corresponding Madison Subdivision Regulations (hereinafter, the " subdivision laws"). The division must be made for the purpose of sale or building development of the land, now or in the future. A person's " purpose" is a state of mind defined by his or her intention to accomplish a particular end. See Black's Law Dictionary (Bryan A. Garner, ed.; 10th ed., 2014) (defining " purpose" as an objective, goal or end). In criminal law, an offense containing a " purpose" element is a specific intent crime, see State v. Faria, 254 Conn. 613, 636, 758 A.2d 348 (2000) (discussing the " specific intent" element under a statute defining " sexual contact" as " contact with the intimate parts of a person . . . for the purpose of sexual gratification of the actor"), and, as such, requires the finder of fact to conclude that the result is not merely known to be probable or even practically certain, but that it is the " conscious object" of the actor. 1 American Law Institute, Model Penal Code § 2.02, Comment 3, at 233 (1985); see also Bryan A. Garner, Garner's Dictionary of Legal Usage, at 737 (3d ed. 2011).
In the present case, the conduct at issue in 1972--the " division" of land--occurred when Susan Clark carved out Parcels D and E from Parcel A and deeded those parcels to the owners of Parcels C and B, respectively. The Board found that this was done for the purpose of conveying (restoring, or assuring ownership of) beach rights to the owners of Parcels C and B . Contrary to the Rooneys' claim, this finding is not based on speculation--it is a reasonable inference rooted firmly in the evidence. Indeed, it is the most (perhaps only) reasonable inference arising from the evidence as to Susan's purpose in creating Parcels D and E. Evidentiary support is found in the cumulative effect of at least four basic facts:
1. Parcels C and D were small slices of land, and their creation and conveyance served no apparent purpose other than to transfer the associated beach rights.
2. The deeds dividing the Original Parcel (in 1932 and 1962) failed to make it clear in express terms that the parcels thereby created (the parcels that later became known as Parcels C and B, respectively) retained beach rights. The 1972 deeds to Parcels D and E rectified this problem by conveying the beach rights in express terms. See p. 14 above.
3. Parcels D and E were conveyed without consideration, which supports the inference that the purpose was to restore beach rights rather than confer development-related value.
4. Parcels D and E were conveyed by Susan to Susan (and the co-owners, with Susan, of each parcel on the receiving end, her husband and her sister's estate, respectively), again supporting the inference of a non-commercial purpose.
The only other identifiable purpose of the conveyances was to straighten the uneven lot lines created in 1962, which would be in the nature of a lot-line revision rather than a subdivision of land. See p. 19 below.
The deeds recite the conventional language of nominal consideration (" one dollar and other valuable considerations"), and there is every reason to believe that this was included solely to satisfy formal legal requirements.
The Rooneys argue that the sale of Parcel A to a third party (Premier Title and Mortgage Co.) promptly following the creation and transfer of Parcels D and E proves that Parcels D and E were created for the purpose of sale or building development. Not so. There is substantial evidence, described above, that Parcels D and E were created and conveyed for the purpose of ensuring that the owners of Parcels C and B would have deeded beach rights. The sale of Parcel A undoubtedly was a related event--it occurred as part of a series of coordinated transactions--but the Board was justified in concluding that, just as clearly, the sale of Parcel A was not the purpose of Susan's actions in connection with Parcels D and E. Her purpose was to restore beach rights to Parcels B and C. Susan needed to carve out Parcels D and E before selling Parcel A to accomplish that purpose, but the sale of parcel A itself was not her purpose in connection with the land division, because she did not need to sell Parcel A to accomplish her objective in creating Parcels D and E. The sale of Parcel A, in other words, was incidental to her purpose in dividing the land.
Likewise, the evidence supports the conclusion that Susan did not create Parcels D and E for the purpose of " sale or building development" of Parcel B, C, D or E, whether immediate or in the future. To be sure, Susan created Parcels D and E in order to convey the associated beach rights to the owners of Parcels C and B, respectively. To do so required a conveyance deed reciting legal consideration. See n.16 above. But the evidence demonstrates, and the Board necessarily found, that Parcels D and E were not created by Susan Clark for the purpose of the " sale" of those parcels in any meaningful sense of that word. The conveyances were intra-familial--indeed, nearly infra-personal, in that Susan was both grantor and grantee--and accompanied only by peppercorn consideration.
If the legislature had intended to include all conveyances of the divided land to come within the scope of the " purpose" element of the statute, it presumably would have said so (e.g., " the division of a tract or parcel of land into three or more parts . . . for the purpose . . . of any conveyance or transfer . . ."). See Achillion Pharms., Inc. v. Law, 291 Conn. 525, 536, 970 A.2d 57 (2009) (" If the legislature had intended to draft a statute that authorized [the practice at issue], it could have easily and explicitly said so"); Genesky v. Town of East Lyme, 275 Conn. 246, 258, 881 A.2d 114 (2005) (" if the legislature wants to [enact provisions accomplishing a particular result] it knows how to do so"). Only a qualifying division for the purpose of " sale or building development" is included within the scope of the subdivision laws.
Similarly flawed is the Rooneys' argument that the creation of parcels D and E enhanced the value of Parcels C and B, and thus was done for the purpose of future sale or building development. The Board determined that Susan's purpose was to transfer beach rights. This finding was made in the context of a record clearly establishing the undisputed fact that Parcels B and C had previously enjoyed those same beach rights; Susan's actions in 1972 were undertaken to restore the situation to the status quo ante . Her purpose was backward-looking and restorative, not forward-looking and preparative, and the Board was justified in declining to find that Susan's purpose was to sell or build on the land in the future.
The court has concluded that there is substantial evidence supporting the Board's determination that there was no " subdivision" in 1972, because Susan Clark's purpose was not the sale or building development of the subject land. Although not essential to the court's holding, additional support for the Board's determination is also found in the Board's observation that Parcels D and E were " effectively merg[ed]" into Parcels B and C, respectively, after serving their purpose. The " merger" point does not appear to have been intended as a technical legal conclusion, but rather as a fitting and accurate description of what in fact occurred in 1972, and the practical effect of those events. Consistent with Susan Clark's intention, Parcel D quickly became (and remains) part of Parcel C, and Parcel E became (and remains) part of Parcel B. Put in other words, there were three parcels (A, B and C) before the conveyancing activity, and there were three parcels, with only slightly modified boundaries, after those conveyances, i.e., A (minus D and E), B (plus E), and C (plus D). This is not a scenario reflecting a division of land " for a purpose" within the scope of the subdivision laws.
The court's conclusion upholding the Board's determination under the " purpose" prong of the subdivision test makes it unnecessary to address the Golicz's claim that there also was no " division" within the meaning of the subdivision laws.
The court also rejects the Rooneys' secondary claim that an illegal subdivision was created (or expanded) in 2013 and 2014, when the Goliczs purchased a portion of an abutting parcel, known as Lot 119, for the purpose of adding sufficient area and frontage to Lot 118 to satisfy the zoning requirements for a building lot in Madison. What the Rooneys seek to characterize as illegal subdivision " cuts" made to Lot 119 by the Goliczs were the type of land consolidation and lot-line revision that does not constitute the " subdivision" of land under settled Connecticut law. See McCrann v. Town Plan and Zoning Comm'n, supra, 161 Conn. at 70 (consolidation of lots not a subdivision); Goodridge v. Zoning Board of Appeals, supra, 58 Conn.App. at 765; see also R. Fuller, 9 Connecticut Practice Series, Connecticut Land Use Law and Practice, supra, § 10:9, at 319-2 (discussing Goodridge 's holding that lot-line adjustments of this nature do not require subdivision approval).
IV. THE FRONTAGE ISSUE
The Rooneys argue that the Board erroneously concluded that the Golicz's property does not satisfy the minimum frontage requirements for a building lot under the Madison zoning regulations. This claim is based on the fact that the frontage found by the Board to meet the relevant requirements is what the Rooneys call " paper" frontage, that is, frontage that will not be used by the Goliczs as a means of access to the lot. (The Goliczs intend to use the right-of-way over the Rooneys' property, described earlier, as a means of ingress and egress.) The court finds this argument unpersuasive.
Although not explicitly presented as such, the Rooneys' argument regarding frontage raises a claim of legal error. They contend that the Board erroneously construed the relevant regulations. The relevant facts are undisputed. The court will therefore apply the standard of review applicable to such claims. See above pp. 9-10.
The governing law and dispositive facts are straightforward. Section 2.4 of the zoning regulations, entitled " Required Frontage and Access, " provides in relevant part:
No building shall be built on any lot unless such lot has a frontage of at least 25 feet on a public street, or unless it has unobstructed, exclusive right-of-way at least 25 feet wide to a public street. [Emphasis added.]
Frontage, in turn, is defined in § 19 of the zoning regulations as " a continuous property line that is also a dividing line between a Lot and a public or private roadway."
The subject property has frontage measuring twenty-five feet on Liberty Street, a public roadway. This undisputed fact ends the inquiry under the applicable regulations.
The Rooneys argue that this interpretation of the regulations ignores the language in § 2.4 of the regulations, which states that the required frontage must be on a public " street." They claim that the word " street" is defined in the regulations as " a public or private roadway or right of way, giving access to the Lot." Rooneys' Brief at 23 (emphasis added by plaintiffs). The Rooneys take this language to mean that " frontage, " to satisfy the requirements of § 2.4, must " be on a roadway that provides an individual with the right, opportunity or ability to enter Lot 118." Id.
The Rooneys have misquoted the definition of " street" upon which their argument depends. Section 19 of the regulations defines " street, " not as " a public or private roadway or right of way, giving access to the Lot, " but, rather, as " a public or private roadway, or right of way giving access to the Lot." The misplaced comma, no doubt inadvertent, cannot be permitted to obscure the plain meaning of the regulation. The Board properly determined that " frontage" is not synonymous with " access" under the regulations.
The court's conclusion on this point does not rely only on grammatical construction. By using the disjunctive (" or"), Section 2.4 clearly permits an owner to satisfy its requirements in one of two different ways--either by meeting its frontage requirements or its access (right-of-way) requirements.
As a fallback argument, the Rooneys contend that the construction relied on by the Board must be overturned because it leads to bizarre and unworkable results by " permitting land-locked parcels with [only] 'paper frontage.'" Board's Brief at 27. The court is mindful of the principles applicable to the interpretation of zoning regulations, see, e.g., Graff v. Zoning Board of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006), and the specific canon, emphasized by the Rooneys in support of their argument regarding Section 2.4, instructing that " [w]hen more than one construction [of the regulation's language] is possible, we adopt the one that renders the enactment effective and workable and reject any that may lead to unreasonable or bizarre results." Id. at 653. This argument cannot overcome two defects. First, the construction offered by the Rooneys is not based on a reasonably " possible" construction of the regulations, as the Graff standard demands, much less does it rest on one of two " equally plausible" interpretations of the regulation's language, as required under the formulation used in Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001). In fact, the Rooneys have failed to offer any plausible construction of the actual language of the regulation that would support their proposed meaning.
Second, other than speculative musings offered by the Rooneys, there is no basis for the court to believe that the Board's construction leads to bizarre or unworkable results. No evidence or scholarly commentary or other authority is cited in support of that bald assertion. The evidence in this particular case, moreover, does not implicate concerns about a " land-locked" building lot. Under these circumstances, the court will not assume that the Board's construction leads to bizarre results.
One final point will be noted on this issue. Although the court here has not " deferred" to the construction relied on by the Board, it is unclear as a conceptual matter why a reviewing court should ignore the fact that the local administrative body actually responsible for enforcing these regulations (and living with the consequences) saw nothing unworkable in the result arrived at in its interpretation of Section 2.4. A local zoning board may have no advantage over a court in terms of pure interpretive abilities, but here we are focused on a canon of construction that turns on an assessment of practical (bizarre, unreasonable, unworkable) results . It seems odd in this specific context to presume that the trial judge's assessment of " workability" should be accorded the same or greater weight than the assessment of a local zoning board.
V. THE PREJUDGMENT/PREDISPOSITION CLAIM
The Rooneys claim that the Board's attorney improperly injected his own views, particularly regarding the underlying facts, into the proceedings, and the Board made up its mind on the Rooneys' application based on its attorney's alleged fact-finding. The court has carefully reviewed the parties' respective arguments on this issue as well as the relevant portions of the administrative record. There is no basis upon which to credit the Rooneys' argument.
The appeal is dismissed.