Iannucci v. Zoning Board of Appeals

592 A.2d 970, 25 Conn. App. 85, 1991 Conn. App. LEXIS 210
CourtConnecticut Appellate Court
DecidedJune 18, 1991
Docket9018
StatusPublished
Cited by32 cases

This text of 592 A.2d 970 (Iannucci v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Iannucci v. Zoning Board of Appeals, 592 A.2d 970, 25 Conn. App. 85, 1991 Conn. App. LEXIS 210 (Colo. Ct. App. 1991).

Opinion

Landau, J.

The defendant denied the plaintiffs application for several variances for the repositioning of a house and the construction of an additional structure. Upon certification by this court, the defendant appeals from the trial court’s decision that the defendant’s denial of the plaintiff’s application was illegal.

The defendant claims that the trial court improperly found (1) that the defendant had abandoned its claim of merger, and that the issuance of a building permit by the building official required certain land to be treated as separate building lots, (2) that the plaintiff’s two contiguous lots had not merged, (3) that the defendant should have considered General Statutes § 8-26a, and (4) that the defendant improperly determined that no hardship existed. We agree with the defendant.

The following facts are pertinent to this appeal. The plaintiff purchased the property from his mother’s estate in 1987. His parents had purchased the property in the early 1950s. The property is comprised of two parcels designated lots one and two as shown on a subdivision map approved by the planning commission and filed on December 19,1938. At the time that the plaintiff submitted his variance application, the house was located on lot two with a portion built over the property line onto lot one. A survey map dated April 12, 1987, shows lots one and two as a single lot with the [87]*87house extending over both sides of the preexisting boundary line. The plaintiff requested variances from the defendant to relocate the house entirely onto lot two and to build a house on lot one. After a public hearing, the defendant, on November 14,1988, denied the plaintiffs application in part because it concluded that “when a portion of the dwelling on lot two was constructed over the property line, lots one and two were effectively combined.” On December 7,1988, the plaintiff appealed the defendant’s denial to the Superior Court.

After the defendant denied the plaintiff’s variance application and while the appeal was pending before the Superior Court, the plaintiff submitted an application for a building permit, dated February 15, 1989, to the building department of the town of Trumbull. On February 16,1989, the town building official issued a building permit to move the house off of its existing foundation and to construct a new foundation. At the hearing before the trial court, the plaintiff testified that the house had been relocated entirely onto lot two.

I

The trial court concluded that the defendant had abandoned the issue of merger because the town building official issued a building permit and because the defendant did not “readdress the question of merger” by filing a reply to the plaintiff’s supplemental brief. The trial court improperly concluded that the defendant had abandoned its claim of merger.

The plaintiff submitted an application for a building permit to “move existing house off foundation, construct new foundation and renovate complete house.” The town building official, as authorized by the town’s zoning regulations, issued a permit for the requested relocation and renovation. Upon issuance of the permit, the plaintiff relocated the house. Although termed [88]*88abandonment, the trial court in essence found that the issuance of the building permit estopped the defendant from asserting that the lots had merged.

Estoppel may be invoked in municipal zoning cases “ ‘(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations. . . ” (Citation omitted.) West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). The building inspector is not the zoning board and does not have the authority to determine whether lots have merged. The building official’s issuance of a building permit, therefore, neither estops the defendant from continuing to assert that the lots had merged nor constitutes a variance from the zoning regulations. For this same reason, the trial court improperly concluded that the lots must be treated separately because of the issuance of the building permit.

The defendant’s failure to file a reply brief not ordered by the court also does not constitute abandonment. At trial, the court granted the plaintiff’s request to file a supplemental brief addressing the issue of merger. In turn, the court provided the defendant with the right to file a reply brief. The defendant, however, had fully addressed the issue of merger in its initial brief. The opportunity to file a reply brief is not an order, and no authority was furnished to this court, nor are we aware of any, that persuades us that the failure to file a reply brief not ordered by the court is evidence of abandonment, particularly where the issue to be discussed has already been briefed.

II

The defendant claims that the trial court, in overruling the defendant’s decision, improperly found that lots one and two had not merged. “Courts are not to sub[89]*89stitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing.” (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). When a zoning board of appeals has stated the reasons for its action, a reviewing court may determine only whether the reasons given are supported by the record and are pertinent to the decision. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984). The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it. Id. Therefore, on the issue of merger, the trial court was “restricted to a determination of whether the board’s finding of merger was reasonably supported by the record and whether this was a pertinent basis on which to deny the plaintiff’s application.” Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 677, 559 A.2d 1174 (1989); see also Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 609, 578 A.2d 165 (1990).

Contiguous land owned by the same person does not necessarily constitute a single lot. Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1957); Marino v. Zoning Board of Appeals, supra. A merger can occur, however, if the owner of contiguous parcels of land intends to form one tract. The owner’s intent “may be inferred from his conduct with respect to the land and the use which he makes of it.” Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989). Intent is an inference of fact and “ ‘is not reviewable unless it was one which the trier could not reasonably make.” Blum v.

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Bluebook (online)
592 A.2d 970, 25 Conn. App. 85, 1991 Conn. App. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iannucci-v-zoning-board-of-appeals-connappct-1991.