Folsom v. Zoning Board of Appeals of the City of Milford
Evidence that a prior owner installed a sewer lateral on part of a property can be sufficient to prove the property merged with adjacent lots. In July 2011, Joseph Gelb requested that the zoning enforcement officer declare lot 399 a legal, nonconforming lot, and the ZEO issued a certificate of zoning compliance, that lot 399 could be used as a legal, nonconforming building lot. The plaintiff, Timothy Folsom, filed an appeal to the zoning board of appeals and argued that because lot 399 was used in conjunction with adjacent property when a sewer was installed, lot 399 merged with the adjacent property. The ZBA affirmed the ZEO's decision, and Folsom filed an appeal to the Superior Court. "Generally, merger is found where the adjacent tracts have been used as a single property over a long period, even where the deed description references multiple lots from a map filed in the land records," pursuant to Laurel Beach Assn. v. Zoning Board of Appeals, a 2001 decision of the Connecticut Appellate Court. Timothy Folsom presented a significant amount of evidence that the prior owner installed a sewer lateral that merged lot 399 with adjacent lots. Merger could be inferred as a result of the installation of the sewer lateral, even if the prior owner did not intend to merge the lots. The prior owner stated, "When we hooked up to the City of Milford sewer system, I wasn't concerned with the placement of the waste line in relation to individual Lot lines, because I had always considered the property as a single tract of land." The only evidence that established there was no merger consisted of the ZEO's testimony. Apparently, the ZEO reasoned that the sewer lateral could be relocated to another location. The court rejected the ZBA's claim that a sewer lateral is entitled to special treatment, because it is located under the surface. Substantial evidence in the record failed to support the ZBA's decision that the lots did not merge. The ZBA's decision was arbitrary and illegal, and the court sustained Timothy Folsom's appeal.