Opinion
No. CV 08 4008580
February 10, 2009
MEMORANDUM OF DECISION
I. BACKGROUND
The plaintiff in this action is Jonathan Shea, who appeals the decision of the East Haddam Probate Court (Probate Court) pursuant to General Statutes § 45a-186. The defendants are the plaintiff's three sisters, who, together with him, are the sole beneficiaries of their mother's last will and testament which was admitted into probate. In granting the defendants' motion for the sale of real property, the Probate Court concluded that a specific devise of real property to the plaintiff, involving a portion of the larger parcel of land in the estate, had lapsed due to illegality. Based upon this legal conclusion, the Probate Court ordered the entire parcel of real property to pass under the residuary clause of the will. It is from this written decision of the Probate Court, dated February 29, 2008, that the plaintiff appeals. The court affirms the Probate Court for reasons set forth in this decision.
General Statutes § 45a-186(a) provides: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo"
As there was no record made of the Probate Court proceedings pursuant to General Statutes §§ 51-72 and 51-73, the court tried this appeal de novo and considered the evidence presented by the parties. "The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo . . . Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court." (Internal quotation marks emitted.) Sandford v. Metcalfe, 110 Conn.App. 162, 168, 954 A.2d 188, cert. denied, 289 Conn. 931, 958 A.2d 160 (2008).
II. PROBATE COURT DECISION
The court adopts the following factual findings of the Probate Court, which are, in large measure, undisputed between the parties and are consistent with the testimony and evidence presented in these proceedings:
"Clare Shea died testate on October 25, 2006 while domiciled in the Town and Probate District of East Haddam. Her Will dated August 30, 1993 was admitted to probate by order of this Court dated January, 18, 2007. Her Will provided for a division of property of the real estate where the decedent made her home at 141 Creek Row, East Haddam as follows: `THIRD: (A) I give and devise to my son, JONATHAN T. SHEA, if he survives me, a portion of the land which I own and which is part of the land more fully referred to in a Deed from Anna Rzeznikiewicz, Agnes Rzeznikiewicz and Sophie Rzeznikiewicz dated January 26, 1953 and recorded in the East Haddam Land Records in Volume 68 at Page 149. Said land being devised herein is bounded: Northerly, by land now or formerly of Haagenson; and Westerly, by the East Haddam-Moodus Road, a/k/a Route #149. The Easterly line of said premises runs along a stone wall and the remains thereof which is located approximately 166 feet westerly from the house located on my other land. Together with a right to pass and repass on foot and with vehicles and the installation of utility lines to said premises from Creek Row, 15 feet in width running over the existing driveway; thence at a location from the westerly end of said driveway to the premises above described, at a location determined by my Executors. It is understood that if said right of way is used by the owners of my remaining property expenses of maintaining said right of way shall be shared by those using same. JONATHAN, his heirs and assigns, shall have the right to hook up to the existing power line."
"The decedent's residence sits on about 13.75 acres of land and is situated in an R-1 zone of the Town of East Haddam. The lot existed in its present form when East Haddam first adopted a zoning ordinance and subdivision regulations in 1961. Within the R-1 zone East Haddam's zoning ordinance permits, inter alia, construction of single family residences on lots of one acre or more. The East Haddam Zoning Ordinance and Subdivision Regulations, as amended in 2002, now also require that any lot within the R-1 zone have a minimum of 150 feet of frontage on a public road or approved private road. At the time that the decedent wrote her Will the zoning ordinance and subdivision regulations of the Town of East Haddam permitted the development of so-called `flag' or `cherry stem' lots in which an interior lot containing double the minimum lot acreage in a given zone could be approved with only an access strip of not less than 25 feet in width extending to a highway or road. Those regulations were amended after the date of the decedent's Will to eliminate flag lots.
"Pursuant to the terms of the Will the fiduciary engaged a land surveyor, Robert Weaver, to prepare the property for a free lot split to create a lot for the decedent's son as dictated under the terms of her Will. Mr. Weaver, after beginning his work, informed the fiduciary that he had questions as to whether the land could be legally split or subdivided under the present zoning ordinance and subdivision regulations and ceased his work to avoid generating fees for what might prove to be impossible. In particular, Mr. Weaver raised the question of the lot having only 275 feet of frontage on a public road. With regard to this point a review of the nature of the property at issue is in order.
"As noted above, the decedent's residence sits on about 13.75 acres of land. The house sits on a ridge top and has commanding views of the Connecticut River valley. To the west of the house the lot drops precipitously to Connecticut State Highway 149, locally known as East Haddam-Moodus Road. It is along Route 149 that the lot has its full 275 feet of frontage. The other three sides of the property abut private landholdings. Given the precipitous drop from the house to the state highway, access to the property has, at least since the construction of the decedent's house in or about 1953, been over an easement across land on the east end of the property now owned by the Connecticut Audubon Society.
"It has been submitted to the Court that given the lack of 300 feet of frontage that could be divided into the two 150 foot frontages needed for two lots, the land cannot be divided by a free lot split or subdivision because it cannot be divided in a manner that will create two conforming lots. The Court concurs with the view that, as currently configured, the lot cannot be split or subdivided into two lots that are in compliance with the local zoning ordinance and subdivision regulations. Further, the Court takes judicial notice of the fact that even were the fiduciary to split off a lot for the decedent's son which was in technical compliance with the zoning ordinance and subdivision regulations (giving 150 feet of frontage to the near lot and leaving 125 feet for the remaining land) the creation of that lot would not be legal because its creation would ipso facto create a non-conforming lot, i.e., the remaining land on which the house would still stand. The Court further takes judicial notice of the fact that the Town of East Haddam would not issue zoning permits and, therefore, building permits on either resulting lot were the property to be split into one conforming and one nonconforming lot or two non-conforming lots." (Exhibit G, Memorandum of Decision, pp. 1-5.)
In considering these facts, the Probate Court concluded that "[s]hould the provisions of the decedent's will be carried out the fiduciary and the heirs would be subject to the sanctions set out in Connecticut General Statutes [§ ]8-12. It is therefore the conclusion of this Court that the bequest to Jonathan Shea in Article Third of the decedent's will has lapsed due to illegality and the entire property at 141 Creek Row should pass under the residuary clause of her will." (Exhibit G, Memorandum of Decision, p. 7.)
III. PLAINTIFF'S APPEAL
It is from this ruling that the plaintiff appeals, claiming the Probate Court's decision was rendered in complete disregard of the clear and plain language of the duly admitted will, and citing no legal precedent to justify rewriting the specific bequests of the will. In his appeal, the plaintiff specifically claims the following errors: (1) that the bequest under Article Third of the will lapsed as a matter of law despite the fact that the specific devisee is living and there has been no change in the title of the real estate which prevents the specifically devised real estate from passing to the specific devisee; (2) that the bequest under Article Fourth of the will lapsed as a matter of law despite the fact that the appointed Trustees, being the specific devisee, are living and there has been no change in the title of the real estate which prevents the specifically devised real estate from passing in accordance with the terms of the will; (3) that the East Haddam Zoning Regulations cause the specific bequest under Articles Third and Fourth of the will to lapse despite the fact that zoning regulations affect only the use of the land and not the title to land; (4) that the East Haddam Subdivision Regulations cause the real estate devised under Articles Third and Fourth of the will to lapse despite the fact that a subdivision, as defined under General Statutes § 8-18, is a division of a parcel of land into three or more separate parts or lots made subsequent to the adoption of subdivision regulations; (5) that the real estate devised under Articles Third and Fourth should pass pursuant Article Fifth, the will's residuary clause, despite the fact that this real estate is specifically devised and pursuant to General Statutes § 45a-428, cannot be sold without the written consent of the specific devisee.
IV. FURTHER FINDINGS OF FACT
The essence of these factual and legal claims is that this court should honor the testator's clear intention to make a specific devise of land to the plaintiff. In particular, the plaintiff claims that the will entitles him to a four-acre portion of the larger estate and former abode of the testator and her family, which he referred to in his testimony as "Jonathan's Hill." It is important to note that, pursuant to the will, the plaintiff originally was to receive a one-half interest in 64 Creamery Road in East Haddam. However, the plaintiff currently resides at this address, having received title from the testator, inter vivos. Therefore, this real property is no longer subject to the will in light of this inter vivos transfer.
In addition to the Creamery Road property, the will grants a life interest in the testator's home to the plaintiff, which is situated on the larger portion of the proposed, but as yet undivided, real property. The court notes that this is not a consideration of the court, except to the extent that the plaintiff has been granted a number of residential options under the will and the inter vivos transfer. Therefore, although "Jonathan's Hill" appears to be contemplated in the will as a potential building lot, it is reasonable to conclude that it was not contemplated by the testator as essential as a residence, immediately available to the plaintiff or otherwise.
The defendants offered an e-mail from Jim Ventres, the East Haddam land use administrator, at the trial, which was accepted by the court without objection. (Exhibit B.) In the e-mail, he comments upon the proposed split of this property into two lots:
"As for splitting the lot, without speaking of septic suitability, I have the following comments; a. The lot does not have enough frontage to split the lot without creating a non-conformity. Frontage for the zone is 150 feet. To create any new lot would require an application and approval from the Zoning Board of Appeals. Until 2003, interior lots were allowed. Under the present regulations, no interior lots are permitted. b. The access from Rte 149 would most likely not meet the driveway slope criteria. Access would have to be from Creek Row. If the right a way permits additional lot access would be for others to determine . . ." (Exhibit B.)
The parties indicated that the email from Ventres was presented as evidence in the Probate Court proceedings, but Ventres was not called as a witness. In testimony before this court, Ventres testified that the proposed four-acre split from the larger parcel would result in an "illegal split." His reasons for considering this to be an illegal split varied during the course of his testimony, and he was ultimately uncertain whether there was any legal authority preventing, for example, the clerk from filing a deed in the land records conveying title from the estate to the plaintiff. He was nonetheless certain that, absent a variance, no permit would properly be issued for the use of the property.
See Zoning Regulation § 7.10.
Ventres explained and all parties agreed that the proposed "interior lot" was permitted when the will was written, but is no longer permitted as of right in an R-1 zone. The elimination of the right to an interior lot resulted from the adoption of amendments to the East Haddam Zoning Regulations in 2003 (Zoning Regulations). The new Zoning Regulations, as applied to the previously executed will's bequest of this real property, would result in a four-acre conforming lot, but would, at the same time, render the remaining acreage and the testator's home (existing home and acreage) non-conforming. The reason for this is that the split would result in insufficient "frontage" for the existing home and acreage. Because the split would render the existing home and acreage non-conforming, Ventres considered the new four-acre lot "illegal," but again cited no legal authority for this conclusion. Ventres clearly stated that the existing home on the remaining acreage would continue to be a lawful residential dwelling, despite the non-conformity created by the devise; however, by creating a non-conformity, the new conforming four-acre lot would not have a lawful use under the Zoning Regulations.
When initially questioned on this point, he opined that the proposed four-acre lot would violate General Statutes § 8-18 concerning subdivisions. When presented with the specific facts of this case; namely that this split of land was into two parts, and not into "three or more" as contemplated in the statutory definition of a subdivision, Ventres concluded that the split would not be an illegal subdivision. He was uncertain, though, whether the lot would remain "illegal" without being designated as open space, conservation or agricultural land, as required by that statute.
General Statutes § 8-18 provides: "As used in this chapter: `Commission' means a planning commission; `municipality' includes a city, town or borough or a district establishing a planning commission under section 7-326; ` subdivision' 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, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision; `resubdivision' means a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map; ` cluster development' means a building pattern concentrating units on a particular portion of a parcel so that at least one-third of the parcel remains as open space to be used exclusively for recreational, conservation and agricultural purposes except that nothing herein shall prevent any municipality from requiring more than one-third open space in any particular cluster development; `town' and `selectmen' include district and officers of such district, respectively." (Emphasis added.)
The court notes, however, that the open space requirements of General Statutes § 8-18 appear to apply to "cluster development" and no evidence was submitted suggesting that this lot configuration resulted in a cluster development.
When questioned further, Ventres concluded that a "free split" would be legal only if it was properly tested for water and sewer. Although he conceded that the triggering event would be a request for a permit, he also concluded that the town would not allow the split in the first place. Although he was unable to identify specific authority for this conclusion, he suggested a public policy rationale for preventing unauthorized splits of property. From his experience, so-called "free splits" often result in confusion on the part of landowners who believe they own a building lot when, in fact, they do not. In order to avoid this confusion, the clerks and land use offices attempt to intercede in the filing of maps and deeds with splits that may be non-conforming or unapproved for particular uses.
Throughout his testimony, Ventres freely conceded that a variance would remedy the question of whether this devise of land resulted in an illegal lot. Although he offered no opinion of whether an application for a variance would be successful, he was doubtful that one would be heard or granted if any of the owners or beneficiaries failed to join in the application. Ventres verified that no application for a variance had been filed for these proposed lots.
The plaintiff freely conceded that he had done nothing to secure a variance, suggesting that he considered it premature, presumably due to the fact he did not yet have title. He also testified that he was unable to agree with the other heirs upon a particular proposal for a variance and believed that the specific bequest of land in the will ought to be honored.
Ironically, the frontage for this land is unusable. The only frontage that exists for either of these parcels, as proposed, is along Route 149; however, ingress and egress to the property exists exclusively on the far side of the property along a right-of-way to Creek Row Road. Access from Route 149 would not be permitted as of right due to a slope of approximately 30 percent across the land to the road. Therefore, the frontage requirements of the Zoning Regulations are merely theoretical as they apply to these proposed parcels, because the only existing access to them is upon a right of way from another road.
V. DISCUSSION
The Probate Court's decision concluded that it was improper to uphold the testator's devise of land to the plaintiff because the resulting lot would not be legal "and the heirs would be subject to the sanctions set out in Connecticut General Statutes [§ ]8-12." (Exhibit G, Memorandum of Decision, p. 7.) This decision also is consistent with the concerns expressed by Ventres, who would consider the lot created by the will to be "illegal."
The use of the term "illegal lot" appears in our case law and treatises in the context of land use regulation. In Robert Fuller's commentary on Connecticut Land Use and Practice, he frames this issue as follows: "A person who buys a nonconforming lot or who acquires property with a nonconforming use caused by a change in the zoning regulations has the same right to obtain a variance as the seller of the property, and is not barred from obtaining a variance by the purchase with knowledge rule . . . However, the purchase with knowledge rule would bar the buyer of an illegal lot from obtaining a variance where he purchased the property with knowledge of the problem. For example, the owner was not entitled to a variance when the lot was improperly divided by a predecessor in title. There is a fine line between these two situations; the cases make a distinction between purchasing a nonconforming lot (or one with a nonconforming use) and purchasing a lot which is illegal, which has a problem due to self-created hardship, or applying for a use not allowed in the zone." (Emphasis added.) R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2007) § 9:4, pp. 256-57.
Although the term "illegal lot" is not generally used in our case law, the preclusive effect of self-imposed hardship on applications for variances has long been clearly established by our Appellate and Supreme Courts. It has been the long-standing rule that "where the claimed hardship arises from the applicant's voluntary act, a zoning board lacks power to grant a variance." (Internal quotation marks omitted.) Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 298-99, 429 A.2d 883 (1980), quoting Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, CT Page 3320 374 A.2d 227 (1977). This language appears to be jurisdictional in nature and is founded upon the municipal authority to grant variances pursuant to General Statute § 8-6(a)(3) Our Appellate court has explained that "for a variance to be granted under General Statutes § 8-6[(a)](3), two conditions must be fulfilled: (1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan . . . Proof of hardship is, therefore, a condition precedent to the granting of a variance, and such hardship must arise from the circumstances or conditions beyond the applicant's control. (Citation omitted; internal quotation marks omitted.) Mandanici v. Zoning Board of Appeals, 50 Conn.App. 308, 311, 717 A.2d 287, cert. denied, 247 Conn. 935, 719 A.2d 1174 (1998).
But see Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 653 n. 5, 918 A.2d 303, cert. denied, 282 Conn. 930, 926 A.2d 669 (2007) (term used). It also appears in cases citing Robert Fuller's language, as the court has done in this case. See Vine v. Zoning Board of Appeals, 93 Conn.App. 1, 20, 887 A.2d 442 (2006) (McLachlan, J., dissenting), rev'd, 281 Conn. 553, 916 A.2d 5 (2007). The common thread in these cases, however, is whether a variance was properly granted or denied. The question of legal title to the property was not before the court in these cases.
General Statutes § 8-6(a)(3) provides: "The zoning board of appeals shall have the following powers and duties . . . (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed . . ."
These opinions justifiably protect the integrity of zoning regulations by discouraging landowners from fabricating the basis for a variance. These cases uniformly hold that the local zoning officials lack the power and authority to vary established zoning rules where the hardship claimed is voluntary or self-imposed. See Johnny Cake, Inc. v. Zoning Board of Appeals, supra, 180 Conn. 298; Abel v. Zoning Board of Appeals, supra, 172 Conn. 289; Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 43, 229 A.2d 356 (1967); Celentano v. Zoning Board of Appeals, 136 Conn. 584, 587, 73 A.2d 101, 102 (1950). Although this well established line of cases has resulted in the use of the term "illegal lot" within the land use nomenclature of our state, it does not appear that the law considers such lots to be "illegal" per se but, instead, they are unlawful for a proposed use requiring a variance from ordinary zoning rules. In the performance of its duties, the Probate Court must certainly guard against the ratification of illegal devises and bequests; however, in this case, the term "illegal lot" must be considered in the limited context of the permitted uses of land.
It is undisputed by the parties that the devise of "Jonathan's Hill" would not have violated the requirements of a residential lot at the time the will was written in 1993. However, the testator either failed or neglected to change the devise after the 2003 amendments were made to the East Haddam Zoning Regulations. The new Zoning Regulations, as applied to the previously executed will's devise, would result in a four-acre conforming lot (Jonathan's Hill), but would, at the same time, render the existing home and acreage non-conforming because the split would result in insufficient "frontage" for the existing home and remaining acreage. Specifically, the existing home and acreage is required to have 150 feet of frontage under the Zoning Regulation. The decrease in size of the existing home and acreage by devise of the will would leave the lot with only 125 feet of frontage rendering it nonconforming under the Zoning Regulations.
The new Zoning Regulations prohibit the devise of this real property. Section 7.13 states in relevant part: "No Lot or parcel of land . . . shall be divided . . . which has the effect of creating a new parcel which will be non-conforming under the provisions of these Regulations. Similarly, no lot or parcel shall be decreased in size, by sale, gift, devise, descent or otherwise, so that it or any part of it will be non-conforming under the provisions of these Regulations." (Emphasis added.)
Zoning Regulation § 8.1.1. also explicitly states that "[n]o lot or parcel shall hereafter be decreased in size, by sale, devise, descent, gift, or otherwise, so that it or any part of it, or so that any structure or building thereon, shall fail to comply with these Regulations or shall increase the extent of any non-conformity." This language, however, is in a section of the regulations addressing existing non-conforming lots.
VI. CONCLUSION
The devise of Jonathan's Hill, if allowed, would render the existing home and acreage non-conforming and would be in clear violation of the Zoning Regulations. It therefore cannot be sanctioned by this court. The decision of the Probate Court is affirmed.