Opinion
No. CV00 180652 S
August 31, 2004
MEMORANDUM OF DECISION
This partition action is brought pursuant to General Statutes § 52-495 praying that the court divide certain real property among three tenants in common. The property consists of 43.4 acres located in the Cos Cob section of the Town of Greenwich. The complaint was returned to court on October 1, 2000. The original plaintiffs were David S. Eisenberg and Lucy T. Eisenberg, co-trustees of the David S. Eisenberg and Lucy T. Eisenberg Living Trust (the "Eisenbergs") and Jessica Matthews ("Jessica"). The defendant is Alma Tuchman ("Alma"). As discussed below, the Town of Greenwich, a contract purchaser, has intervened in the action as a plaintiff. The court heard evidence over several days in March 2004 and, for reasons hereinafter set forth, continued the trial until May 11, 2004 when the parties presented additional evidence. At the invitation of the parties, the court visited the property for several hours on March 27, 2004 for an unaccompanied inspection.
"Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail. The court may appoint a committee to partition any such property. Any decrees partitioning entailed estates shall bind the parties and all persons who thereafter claim title to the property as heirs of their bodies."
THE PROPERTY
The property consists of three tracts. One tract ("Parcel A") consists of approximately 35 acres with approximately 1,000 feet of frontage on Bible Street and 50 feet of frontage on Pleasant Street. The second tract ("Parcel B") is adjacent to Parcel A and consists of approximately 8 acres with approximately 125 feet of frontage on Orchard Street and two separate 50-foot frontages on Pleasant Street. Under the Greenwich Building Zone Regulations, most of Parcels A and B are within the R-20 residential zone which requires lots of at least 20,000 square feet in area. However, a northerly portion of Parcel A may be in the RA-1 zone which requires lots of at least one acre in area and a southerly portion includes a lot of approximately 5,000 square feet fronting on Pleasant Street in the R-7 zone which mandates a minimum lot size of 7,500 square feet. The uncertain zoning of Parcel A is discussed below under the heading "Zoning." Parcel B also includes a Pleasant Street lot of approximately 5,000 square feet located in the R-7 zone. The evidence produced at trial established that both R-7 lots are very likely legally non-conforming undersized lots.
Excepting the R-7 lot, Parcel A is bounded on the north by Montgomery Pinetum, a sixty-acre Town park, on the east by Bible Street, on the south by Bible Street Playground, a seven-acre Town park, and by lots owned by various owners fronting on Pleasant Street, and on the west by Parcel B and by a seventy-eight-acre tract formerly owned by the Pomerance family and recently acquired by the Town. Although irregular is shape, Parcel A measures approximately 1,300 feet from north to south and 1,000 from east to west. There are no structures on Parcel A. The parcel is bisected by Charles Brook (a/k/a Clarks Brook) which runs from north to south through the approximate center of the parcel. The most notable feature of Parcel A is a large meadow situated between Charles Brook and Parcel B. Parcel A's Bible Street frontage is interrupted by a sliver of land approximately 50 wide by 160 long, labeled on certain older maps as "Philo Clark Cemetery." That cemetery lies approximately 300 south of Parcel A's northern boundary.
Excepting the R-7 lot, Parcel B is bounded on the south by Orchard Street and by lots owned by various owners fronting on Pleasant Street, on the east and north by Parcel A and on the west by the former Pomerance property. The main portion of Parcel B is generally rectangular in shape measuring approximately 725 feet from north to south and 380 feet from east to west. This rectangular tract is connected to Orchard Street by a "panhandle" measuring approximately 125 feet wide (east to west) by 475 feet long (north to south). The southern part of rectangular portion of Parcel B is bisected by a watercourse, Strickland Brook, which runs generally west to east through Parcel B and eventually joins Charles Brook in the southern portion of Parcel A and continues southward to Long Island Sound. Parcel B is improved with a main house, stables, an in-ground pool and adjacent pool house, a caretaker's cottage, a writer's cottage and a detached shed. The caretaker's cottage is located immediately north of Orchard Street within the "panhandle" and is connected to a town sewer. The other structures are located in the rectangular portion of Parcel B. The residences located in the main house and the stables are serviced by on-site septic disposal systems. These structures are accessed by a driveway running from Orchard Street along the westerly part of the "panhandle." Upon reaching the rectangular portion of Parcel B, the driveway turns east and then north crossing a small bridge over Strickland Brook to reach the main house, stables, pool and the other structures on Parcel B. A third tract ("Parcel C") is a landlocked piece of lakefront property, approximately 7,450 square feet in area, surrounded entirely by the former Pomerance property and lying approximately 50 feet from the westerly boundary of Parcel A and 200 feet north of Parcel B. It lies entirely within the R-20 zone and can be reached by the right of way from Parcel B over the former Pomerance property. Parcel C is improved with a small shed which has been used as a boathouse.
THE PARTIES
Lucy Eisenberg, Jessica Matthews and Alma Tuchman are sisters, daughters of the late Barbara W. Tuchman, the noted historian. They acquired their interests in Parcel A by two deeds of gift from their mother dated December 13, 1974 and January 6, 1975. Each of the deeds conveyed an undivided one-half interest in Parcel A to the three sisters as tenants in common in equal shares. Barbara W. Tuchman retained Parcels B and C and resided in the main house on Parcel B with her husband and their youngest daughter, Alma.
On August 17, 1982, the sisters acquired ownership of Parcels B and C by a deed of gift from their mother to them as tenants common in equal shares. Lucy T. Eisenberg subsequently conveyed her interests in the property to herself and her husband, David Eisenberg as trustees of a living trust.
After their parents' deaths, the sisters disagreed as to the disposition of the Property. The Eisenberg trustees and Jessica wished to sell, while Alma opposed sale. After the sisters failed to agree on a partition of the Property, the Eisenberg trustees and Jessica commenced this partition action against Alma on October 1, 2000.
On August 13, 2001, the Town of Greenwich (the "Town") filed a motion to intervene as a party plaintiff in this action. The Town claimed to be interested in the Property by virtue of an agreement dated June 4, 2001 between the Eisenberg trustees and Jessica, as sellers, and the Town, as purchaser. Under the terms of that agreement the Town agreed to purchase those portions of the Property that this court would award to the Eisenberg trustees and Jessica. Over Alma's objection, the Town's motion to intervene was granted by the court (Hickey, J.T.R.) on May 23, 2002.
THE TRIAL
At the start of the trial the parties stipulated that the partition would be made be in kind rather than by partition sale pursuant to General Statutes § 52-500 and that Parcel B would be included in the portion awarded to Alma.
The trial continued for seven full days of testimony over a period of three weeks. The parties joined issue on the question of the highest and best use of Parcels A and B. During the course of the trial the parties presented a number of expert witnesses including appraisers and engineers. The present Town Planner, Diane Fox, and her predecessor, James Sandy, both testified as to the viability of competing development schemes presented by the opposing sides. During the course of the trial the court also heard testimony from four licensed real estate appraisers (three of whom held the MAI designation), two surveyors, the Town's Director of Inland Wetlands and Watercourses, Mark Massoud, the Deputy Commissioner of Public Works, Robert Kalm, the Tax Collector, Louis Caravella and the Assessor, Ted Gwatney.
The parties agree that the highest and best use of Parcel A would be as a residential subdivision. However, they are divided as to the feasibility of the proposed development plans. The potential development of Parcel A is influenced by a number of critical factors. These included the presence of Charles Brook which bisects the property from North to South, the presence of other smaller wetland areas scattered throughout the property, the typography of the land, the zoning, subdivision and public works regulations of the Town of Greenwich, and the problem of sewage disposal. The parties differ as to the significance of these factors.
The parties also disagree as to the highest and best use of Parcel B; the plaintiffs contend that it has the potential to be subdivided and that such a subdivision would be the highest and best use of the property. On her part, the defendant claims that the highest and best use of Parcel B is an intact estate. Many of the same critical factors influencing the development of Parcel A also influence the potential development of Parcel B. In case of Parcel B, the presence of Strickland Brook and the problem of crossing that watercourse is a pivotal issue.
The parties offered little evidence with respect to Parcel C. That small parcel, which was conveyed as an appurtenance to Parcel B, permitted the Tuchman family to use a lake situated in the middle of the former Pomerance property for recreational purposes. Now that the Pomerance property is owned by the Town of Greenwich and is generally available to the public for passive recreational use, the advantages of the ownership of Parcel C may be somewhat diminished.
The parties have presented to the court a number of competing plans demonstrating their respective positions concerning an equitable partition of the entire property. Each of these plans purport to demonstrate the highest and best use of both Parcel A and Parcel B and to divide the total property into two parts. The plans set aside one part for the defendant, representing one-third of the value of the entire property and a second part for the plaintiffs representing two-thirds of the value of the entire property. All the plans assign the defendant all of Parcel B as well as additional acreage from Parcel A. However, the parties were far apart as to the share which the defendant should have of Parcel A. The plaintiffs' initial plan called for the defendant to receive less than one full additional acre out of Parcel A. In contrast, the defendant's initial plan called for her to receive an additional nine acres.
THE PLAINTIFFS' INITIAL PLAN
The plaintiffs prepared a draft subdivision plan for the entire property which included the following assumptions. First, the upland portion of Parcel A lying to the west of the Charles Brook could be developed by constructing a bridge crossing the wetlands. Second, two proposed lots to be formed out of the "panhandle" portion of Parcel B could be connected with the Orchard Street sewer. Third, connection with the public sewer would not be available for other lots; accordingly all other septic disposal would be on-site. Fourth, except for the R-7 lots on Pleasant Street, both parcels A and B were entirely within the R-20 zone.
The plaintiffs' initial plan depicted a subdivision of the entire property into sixteen lots. Eight of these lots were located on Parcel A near Bible Street and to the east of the wetlands which bisect Parcel A. Five lots were located to the west of the wetlands and would be reached by a subdivision road running from Bible Street across the wetlands. Although the R-20 zone permits development of lots having a minimum size of 20,000 square feet, the thirteen lots accessed from Bible Street would range from a minimum of 1.1 acres to a maximum of 2.0 acres. These oversized lots were needed because of the assumption that sewage from the lots would be disposed of on-site.
The final three lots have access from Orchard Street. These lots are formed out of Parcel B and the additional area of Parcel A allocated to the defendant under the plan. One lot of approximately 20,000 square feet included the caretaker's cottage and fronts on Orchard Street. The second lot was situated to the rear of the first lot and was claimed to be a rear lot with frontage on Pleasant Street; it was also approximately 20,000 square feet in area. The third lot, eight acres in size, contained the balance of Parcel B together with all remaining improvements (main house, stables, pool, etc.) plus the additional area from Parcel A.
The defendant's experts questioned whether the bridge crossing Charles Brook would be feasible under Greenwich Inland Wetlands and Watercourses Regulations and whether the gradient of the proposed road would present a problem. The defendant also asserted that a connection to the Bible Street sewer would be legal, allowing for the creation of many additional lots from Parcel A. The defendant also contended that the elevation of one of the lots created out of Parcel B on the plaintiff's plan is so low as to contain unmapped wetlands and that its development would not be permitted under Greenwich Inland Wetlands and Watercourses Agency regulations. The defendant also questioned whether that lot would have legal frontage on Pleasant Street under the Town's Building Zone Regulations.
THE DEFENDANT'S INITIAL PLAN
The defendant's plan assumed that no new crossing of any wetland would be permitted. Accordingly, only the land lying to the east of Charles Brook on Parcel A was studied for development. Parcel B was kept intact as an estate and augmented with nine acres of additional land from Parcel A. The defendant assumed that the main portion of Parcel B can not be subdivided at all. Her experts contended that in order to equitably divide the property it would be necessary to set aside nine acres out of Parcel A and add this land to Parcel B. The defendant's one-third share of the property would be 17.4 acres (containing all existing improvements) while her two sisters would take the remaining 25.8 acres as their two-thirds share. The defendant's initial plan assumed that all lots located on Parcel A could be connected with either the Bible Street Sewer or (in the case of the two R-7 lots) the Pleasant Street sewer. The plan also assumed that Parcels A and B were (excepting the R-7 lots) entirely within the R-20 zone.
The defendant's experts prepared several alternative subdivision plans for Parcel A. Each of these plans featured a subdivision road which did not cross Charles Brook and assumed the availability of public sewers on Bible Street and Pleasant Street. The defendant's experts viewed the upland areas of Parcel A lying west of the Charles Brook as being useful only as excess acreage for Parcel B. Accordingly, they assigned that property a relatively low value of $125,000 per acre.
POINTS OF AGREEMENT
The parties and their experts appeared to be in general agreement on the following points. Lots of at least one acre in area would be required unless a public sewer were available. Lots of the same size, whether connected to the public sewer or to on-site sewerage disposal systems would have the same approximate value.
The defendant's appraiser testified that half-acre lots (those of approximately 20,000 square feet) would be worth approximately $775,000 each while one-acre lots would be worth approximately $1 million each. These values were not significantly different from those found by the plaintiffs' appraiser. The court will use these lot values as a rationale basis for comparing the respective proposals of the parties.
LIMITING FACTORS
In order to determine the relative merits of the competing development and valuation plans, it was necessary for the court to review and evaluate the assumptions underlying the plans. These assumptions involved factors which could potentially limit the development of Parcels A and B for residential use. These factors include the Greenwich zoning and subdivision regulations, the presence of inland wetlands and water courses on both parcels and the regulations protecting them, the likelihood of obtaining approvals to construct roads crossing wetlands and watercourses, the availability of public sewers, and the limitations on the dimensions of subdivision roads imposed by the Department of Public Works of the Town of Greenwich.
ZONING
Aside from the small R-7 lot, there is no question that Parcel B lies entirely within the R-20 zone. The zoning applicable to Parcel A is less certain. This uncertainty arises because of the lack of clarity in the Town's Official Zoning Map as to the location of the boundary between the R-20 zone and the RA-1. On the official map the boundary line appears to follow the approximate shape of the northerly boundary for Parcel A, yet the zone boundary line is shown as intersecting with Bible Street at a point south of the Philo Clark cemetery which lies nearly 300 feet south of the northern boundary of Parcel A.
It appears that Parcel A has been intact as a parcel in the same ownership for many years prior to the adoption of zoning regulations by the Town. In setting zone boundaries, the Town's general policy has been to follow street lines and property lines, and not to have zone boundary lines run through an owner's property. The Town could not offer any further information regarding the actual location of the zone boundary line or whether, in fact, it ran through Parcel A.
The present Town Planner and her predecessor both testified that virtually any proposal brought to the Greenwich Planning and Zoning Commission, even those complying with all requirements of the regulations, had no more than an even chance of gaining approval.
In a recent case, Aiudi v. Planning and Zoning Commission, 267 Conn. 192, 837 A.2d 748 (2004), our Supreme Court upheld a denial of a special exception (in which the commission acted in an administrative capacity) based upon general considerations of health, safety and welfare as they affect the community. In Sowin Associates v. Planning and Zoning Commission, 23 Conn.App. 370, 580 A.2d 91 (1990), our Appellate Court had previously held that, in contrast to special permits or site plans, a zoning authority in reviewing an application for a subdivision permit (in which the commission also acts in an administrative capacity) cannot consider off-site traffic conditions, municipal service needs, the effect on neighboring property values, or compliance with generalized health and safety concerns. In light of Aiudi, it is unclear whether the discretion of zoning authorities with respect to applications for subdivision permits remains so circumscribed. In any event, it is clear that it is impossible to forecast, with any degree of certainty, the chances that any given application filed with the Greenwich Planning and Zoning Commission has of gaining approval.
INLAND WETLANDS AND WATERCOURSES
The regulations of the Inland Wetlands and Watercourses Agency of the Town of Greenwich were enacted in 1973 pursuant to the authority of General Statutes § 22a-42. The development of either Parcel A or Parcel B would, of necessity, involve regulated activities in or adjacent to protected wetlands.
Testimony from both parties' experts indicated that the most serious issues would involve the crossing of wetlands and watercourses by subdivision roads. The development of the upland portions of Parcel A lying west of Charles Brook would require that the construction of a bridge over that watercourse which might exceed two hundred feet in length. The development of the main portion of Parcel B would require either the replacement of the existing bridge over Strickland Brook or, more likely, the construction of a new bridge crossing that watercourse in a difference location.
SEWERS
There is a public sewer located in Bible Street along the entire frontage of Parcel A, however, for reasons discussed below there was considerable doubt as to whether Parcel A would be entitled to connect to that sewer. If the sewer is available, the highest and best use of Parcel A would be development as a residential subdivision conforming with the requirements of the Greenwich Subdivision Regulations for the R-20 zone. Such a subdivision could consist of up to twenty-eight lots, assuming the ability to obtain approval from the Inland Wetlands and Watercourses Agency for a crossing of Charles Brook.
If the public sewers were unavailable, each subdivision lot on Parcel A would need to include sufficient area to provide for on-site sewerage disposal utilizing septic tanks and leaching fields (both primary and reserve). This would require lots two or three times the size of those in a subdivision served by sewers. Such a subdivision might well resemble the plaintiff's initial plan with no more than thirteen lots being created out of Parcel A.
The potential development of Parcel B would be similarly limited if the property could not legally connect to the public sewers lying in Orchard Street and Pleasant Street.
The sewer in Bible Street was apparently constructed by the Town in several phases. The ordinary practice of the Town has been to build the sewer and assess benefits against the properties benefited. Evidence was presented that in 1961, benefits were assessed against Parcel A in connection with a three-hundred-foot-long sewer extension built in Bible Street in front of the southern portion of Parcel A. Benefits were assessed against Parcel A in the amount of $1,955.94, representing six percent of the cost of the sewer project which connected a total of thirty-one lots to the Town sewer. The evidence shows that since 1961 the Bible Street Sewer has been further extended north by more than one thousand feet and that it now extends beyond the end of Parcel A's approximately thirteen-hundred-foot frontage on that street.
Although the court requested the Town Attorney to search the records and archives of the Town, the Town Attorney was unable to produce any further evidence as to whether sewer benefits were assessed against Parcel A in connection with the further extension of the Bible Street sewer.
Additional town sewers are located in Orchard Street (to which the caretaker's cottage on Parcel B is connected) and in Pleasant Street. The two R-7 lots fronting on Pleasant Street have the unquestioned right to connect to the town in Pleasant Street. In response to the court's request, the Town Attorney was unable to produce any evidence concerning the construction of these sewers and the manner in which sewer benefits were assessed against Parcel B. However, evidence presented at the trial showed that for many years the Town had assessed and collected sewer taxes from the owners of Parcel B. The evidence further established that sewer taxes are imposed only on properties which are or may be legally connected to the Town's sewers.
In 1989 the Greenwich Department of Public Works prepared a map showing the Town's existing sewer system. That map purported to show all properties in the Town connected to or entitled to connect with the public sewers. For reasons, never satisfactorily explained, Parcel A (except for the R-7 lot on Pleasant Street) was excluded entirely from the sewered area and Parcel B was shown as only partially within the sewered area. Later in 1989, the sewer benefit map was revised and retitled as "1989 Sewer Boundary Map dated November 1, 1989." That map still excluded Parcel A from the sewered area and reduced the portion of Parcel B shown as within the sewered area.
In 1996 the Representative Town Meeting of the Town of Greenwich, acting under the authority of the home rule provisions of Chapter 99 of the General Statutes, adopted a new § 269a of the Town's municipal charter enacting new procedures for certain connections to the Town's sewers and adopting an official sewer map.
Section 269a of the Town of Greenwich charter reads:
(a) Definitions: As used in this section the following terms have the following meanings:
"Planned Sewered Area" — Those areas of the Town which were designed to be included within the capacity of the sewer plant, which areas include areas already sewered, areas which may require sewering and areas from which growth is planned, which growth may require sewering all as shown on that certain map known as the 1989 Sewer Boundary Map dated November 1, 1989; Revision 3, November 20, 1990 on file in the office of the commissioner [of Public Works].
"Non-Sewered Area" — Those areas of the Town planned not to be included within the capacity of the sewer plant as presently designed, in which areas because of larger lot zones and/or soil types, it is planned that sewerage disposal will be on site and not a burden on the sewer plant or the waters of Long Island Sound, all as shown on said aforesaid map.
(b) Purpose. This section recognizes that the preservation of the waters of Long Island Sound are paramount to the best interests of the people of the Town and State and that the directing of unplanned for sewage to the sewer plant and thus ultimately into the Sound is not the solution under present technology, the capacity of sewer plants being limited and present or future threat to the quality of the waters of the Sound, and that planned on-site disposal, in the Non-Sewered Area best serves these interests.
(c) Connections — findings: In the event that any owner of land shall desire to in any way connect into any sewer or sewerage system in the Planned Sewered Area, such owner may petition the commissioner for a connection permit. The commissioner shall have the authority to allow such land owner to connect with such sewer. In accordance with the purpose set forth in this subsection, the commissioner shall establish guidelines for sewer connections, which guidelines shall be submitted to the Board of Selectmen for review prior to adoption by the commissioner.
d) If the property to be served by the connection lies within the unplanned for Non-Sewered Area, in which connections are disfavored as not being in the best interests of the public health, safety and welfare, then the Commissioner shall have authority to allow such land owner to connect with such sewer only if the commissioner can make an affirmative finding in writing as to each of the following factors:
1. That the zoning enforcement officer has determined that all existing and planned structures on the property to be serviced through the connection are in conformity with the zoning regulations.
2. That the Director of Health has determined that on-site sewerage disposal cannot be provided. CT Page 13069
3. That permitting the connection would not contravene any law, rule or regulation, condition or policy of the Connecticut Department of Environmental Protection or of any agreement between the Town and said Department, particularly concerning any new construction in whole or in part, upon a floodplain, flood hazard area, wetland area, beach, dune or other environmentally sensitive area.
4. That the present, future or cumulative effect of the connection will not adversely affect the sewer plants' planned capacity for future growth or shorten its useful life.
5. That the present, future or cumulative effect of the connection will not expose the sewer plant to overload or adversely threaten the quality of the waters of the Sound.
6. That the Planning and Zoning commission or its designee as determined affirmatively in writing that the present, future or cumulative effect of permitting the connection will not adversely affect the Town Plan of Conservation and Development or other Town planning or development plans.
7. That permitting the connection will not adversely affect the sewage system, the Town's efforts to decease infiltration and inflow or burden maintenance.
The map referenced in this charter provision — "1989 Sewer Boundary Map dated November 1, 1989; Revision 3, November 20, 1990 on file in the office of the Commissioner (of Public Works)" — could not be produced during the first three weeks of trial. It simply could not be located in the office of the Commissioner of Public Works or in any other office in Greenwich Town Hall. The November 20, 1990 map eventually was found and was shown to be virtually indistinguishable from the November 1, 1989 map.
On September 18, 2000, the Greenwich Representative Town Meeting adopted a resolution purporting to "reconfirm and approve the new 2000 digitized version of the 1990 Sewer Map Boundary Map as the Official Sewer Map for the Town . . ." The 2000 map shows that all of Parcels A and B (excepting only the two R-7 lots) are outside the sewered area. The minutes of the September 18, 2000 meeting of Representative Town Meeting do not reflect that § 269a of the Town charter was amended by the September 18, 2000 resolution or that home rule procedures were followed. Consequently the "official" status of the 2000 map is doubtful.
Despite the enactment of § 269a of the Town of Greenwich Charter in 1996, it appears that, as a practical matter, the Commissioner of Public Works of the Town did not follow its provisions. Instead, the Commissioner has been permitting a number of properties lying outside the "Planned Sewered Area" to connect to nearby sewers. These connections have been permitted under a written policy adopted by the Department of Public Works.
That policy provides:
Due to the irregularities in the present sewer area boundary map, DPW has established the following ground rules:
If there is a public sanitary sewer on a street and it appears the boundary between the planned sewered area and the non-sewered area is the street, it is the policy of DPW to allow properties on both sides of the street to connect to the sewer that is in the street. This is consistent with Section 10-5 of the Greenwich Municipal Code which states all sewage and household waste shall be discharged into the public sewer wherever the premises abut a street in which there is a public sewer.
Also, if in a case where the boundary line between the planned sewered area and non-sewered area appears to cut through a particular parcel, and the planned sewered area on the property is adjacent to a public sewer, a sewer connection permit would be issued.
After becoming aware of the Department of Public Works policy, the Greenwich Planning and Zoning Commission began taking the position that any new connections to town sewers of properties in the non-sewered area required approval of the Commission as municipal improvements under § 99 of the Town Charter. That section provides in relevant part:
. . . no action . . . shall be taken by any Town agency . . . on any proposal involving:
(1) The location, relocation, major redesign, extension or abandonment of any street or sewage disposal plant . . . Until such proposal has been submitted to and approved by the (Planning and Zoning) Commission . . .
The Commission's position is that new sewer connections constitute "extension . . . of [a] sewage disposal plant."
Section 99 of the Greenwich Town Charter was enacted in 1951. It was not until the late 1990s that the Commission took the position that individual sewer connections constituted part of the sewage disposal plant. The Greenwich Town Attorney has not sanctioned or approved of the Commission's position with respect to the applicability of § 99 of the charter. The interpretation by an administrative agency of its own regulations may be entitled to considerable deference. See, for example, Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976). However, there is no rule of law which accords such deference to an agency's tortured interpretation of a municipal charter.
Despite the court's concerns and reservations, for reasons discussed herein, the court ultimately does not need to resolve the confusion and chaos surrounding the Town's sewer policy (or lack thereof) and its application to the subject property.
HIGHWAY DESIGN
Section 6-288 of the Greenwich Subdivision Regulations require that all subdivision roads conform with the "Street Design Manual" approved and adopted by the Greenwich Commissioner of Public Works. The Greenwich Department of Public Works has issued a document entitled "Roadway Design Manual and Standard Construction Details" which appears to be the "Street Design Manual." That document provides that the maximum length of dead end streets in the R-20 and RA-1 zones is one thousand feet. Although the manual lists such maximum length as a "guideline," testimony indicated that the guidelines were largely inflexible. Consequently any road within a subdivision would need to comply with the one thousand foot limitation. Other design standards require that roads have a right of way of at least fifty feet and allow for a maximum grade of 9.0%.
The length requirement impacts both Parcel A and Parcel B. Much of the westerly portion of Parcel A can only be reached by constructing a subdivision road crossing Charles Brook. Such a road would connect to another subdivision road with access to Bible Street. The parties disagree as to whether any crossing of Charles Brook would be permitted by the Inland Wetlands and Watercourses Agency. However, it is clear that the approval of two crossings of Charles Brook would be virtually impossible to obtain. Consequently, the length of a subdivision road crossing Charles Brook is limited to one thousand feet.
The development of Parcel B is also impacted by the one-thousand-foot limitation on road length. If the road were placed in the "panhandle" the road could only continue for approximately three hundred feet after crossing Strickland Brook, leaving much of Parcel B beyond the end of the road. However, as an alternative, a subdivision road could be placed within the portion of Parcel B which constitutes a fifty-foot-wide lot fronting on Pleasant Street. The road would run from Pleasant Street in a northerly direction to Strickland Brook, a distance of approximately three hundred feet. After crossing Strickland Brook the road could extend for an additional seven hundred feet before reaching the one thousand foot limitation. Such a road would allow the subdivision and development of all of Parcel B as well as significant portions of Parcel A lying to the west of Charles Brook.
RESOLUTION OF SEWER AND ZONING ISSUES
After both sides had submitted their available evidence, it was agreed to continue the trial for approximately six weeks to allow the Town to review its files and records and offer additional evidence as to sewer assessment, the availability of public sewers for Parcels A and B and the location of the boundary between the R-20 zone and the RA-1 zone in the vicinity of Parcel A.
On May 11, 2004 the court resumed the trial. At that time the Assistant Town Attorney addressed the court concerning the open factual questions. With respect to the sewers, the Town agreed that sewer taxes had been paid by the owners of Parcel B and that sewer benefits had been assessed against Parcels A and B for the sewers located in the streets bordering those properties. The Town conceded that the omission of Parcels A and B from the sewered area on the Sewer Boundary Map was an error which the Town was obligated to correct. The court determined that the Town Attorney agreed that its concession regarding the availability of Town sewers would be binding on the Town regardless of whether the Town closed on its proposed purchase of the Eisenberg and Mathews' interests.
The contract with the Town provides that the majority of the purchase price be paid in general obligation notes of the Town. There was no evidence presented at trial that the issuance of such notes had been approved by all necessary Town agencies. Consequently, it is possible that, notwithstanding the entry of a final judgment of partition, the conveyance of the Eisenberg and Mathews interests to the Town might not be finalized.
The Assistant Town Attorney and the Town Planner were unable to determine the official location of the boundary between the RA-1 and the R-20 zones in the vicinity of the northerly boundary of Parcel A. All the parties agreed that for purposes of the court's analysis, it could be assumed that Parcel A was located entirely within the R-20 zone. It was further agreed that such assumption would not be binding upon the Town for any other purpose (i.e. the Town would not be foreclosed from determining that some portion of Parcel A was, in fact, within the RA-1 zone). The court accepted the parties' agreement.
REVISED SUBDIVISION PLANS
At the court's request each of the parties submitted revised subdivision plans. The court requested that these plans assume that public sewers were available for the entire property and that the property was entirely within the R-20 zone. The plaintiffs' plan reflected the subdivision of the easterly portion of Parcel A into twenty lots, eighteen of which were approximately one-half acre in area. The remaining lots of one acre and one and a half acres contain significant wetlands. An additional five lots on Parcel A are located to the west of Charles Brook and reached by the wetlands crossing of that watercourse. Parcel B is augmented in size by four acres transferred from Parcel A. Parcel B is divided into thirteen lots; one of an acre and a half in area and twelve others approximately one-half acre in area. Eleven of the lots are reached by a new wetlands crossing over Strickland Brook, extended north from Pleasant Street through the R-7 lot.
The defendant's plan showed the division of Parcel A into twenty-two lots, eighteen of them slightly larger than one-half acre, with four lots exceeding one acre in size. The subdivision road is semicircular in shape requiring two intersections with Bible Street. No crossing of Charles Brook is contemplated. Although the defendant's plan is somewhat unclear, it appears that Parcel B is increased by approximately five acres in area and subdivided into twelve lots; one of 2.4 acres, one of 1.65 acres and one of 1.22 acres and the balance averaging about slightly larger than one-half acre.
HIGHEST AND BEST USE OF PARCEL B CT Page 13062
Despite her submission of a subdivision plan showing the development of all of Parcel B, the defendant insists that the highest and best use of the main portion of Parcel B would be as an intact estate. The defendant claims that it is not likely that a new relocated crossing of Strickland Brook would be approved. The defendant correctly points out that the present crossing has an inadequate width to permit its use as a subdivision road. The driveway serving the main portion of Parcel B crosses Strickland Brook approximately four hundred feet east of the boundary between Parcel B and the former Pomerance property. The crossing itself consists of a relatively short and narrow bridge over the brook. The defendant also points out that the location of the present crossing would not allow a subdivision road conforming to Town standards to be built regardless of whether the southerly portion of the road is located in the "panhandle" or within the R-7 lot on Pleasant Street.
If, in fact approval for a subdivision road crossing Strickland Brook could not be obtained, the court would agree that the main portion of Parcel B could only logically be used as a multi-acre estate. However, the court concludes that it is very likely that a new subdivision road running from Pleasant Street through the R-7 and crossing Strickland Brook immediately north of the R-7 lot would gain all necessary approvals. The present bridge abutments and surrounding fill serve to significantly restrict the width of Strickland Brook and the adjacent wetlands. The construction of a new subdivision road would allow the abandonment of the present crossing, the restoration of the impacted wetlands and the construction of a crossing engineered to minimize the impact on wetlands and areas prone to flooding.
Since either a subdivision of Parcel B or the retention of its use as an intact estate is feasible the court must evaluate these uses to determine which represents the highest and best use of Parcel B. Gerald Fogarty, one of the defendant's appraisers, testified that a seventeen-acre estate formed from Parcel B and nine additional acres of Parcel A would have a value of $3,650,000. The nine additional acres were valued at the rate of $125,000 per acre. Using his criteria it would appear that Parcel B alone, valued as an intact estate would have a value of less than $3,000,000.
As explained below the court finds that subdivision of a tract consisting of Parcel B and four acres from Parcel A would have a value in excess of $9,000,000. Accordingly, the court concludes that the highest and best use of Parcel B would be as a residential subdivision consisting primarily of half-acre lots.
ANALYSIS OF REVISED SUBDIVISION PLANS CT Page 13063
Having determined that the highest and best use of both parcels A and B would be for residential subdivisions the court considered the respective merits of the latest plans advanced by the parties. As between the two plans, the court finds that the defendant's plan more closely resembles a realistic approach for development of Parcel A, while the plaintiffs' plan presents a better approach for the development of Parcel B. The two principal features of the defendant's plan for Parcel A that the court approves are the use of an R-7 lot on Pleasant Street as an accessway to allow development of two one-acre lots lying to the south of Strickland Brook, and the absence of a subdivision road crossing Charles Brook.
If it were possible to construct a subdivision road crossing Charles Brook up to an additional five lots could be laid out on the upland portion of Parcel A immediately to the north of Parcel B as shown on the plaintiffs' plan. However, the width of the wetlands surrounding Charles Brook and the grade limitations of the Town's Road Design Manual would require a wetlands crossing of approximately two hundred feet and, most likely, the building of a bridge of over two hundred in length elevated twenty feet or more above the level of Charles Brook The court heard conflicting testimony as to the likelihood that such a wetlands crossing would be approved by the Town's land use agencies. After careful consideration the court finds that the weight of the evidence supports the defendant's contention that the crossing of Charles Brook would not be likely to be approved by the Town's land use agencies.
The court believes that the subdivision road shown on the Defendant's plan for Parcel A, requiring two intersections with Bible Street, might have some difficulty in gaining approval. Bible Street is relatively narrow with somewhat restricted sight lines. It may well be that the Department of Public Works or the Planning and Zoning Commission would demand that only one new intersection be created in connection with the subdivision. The court does not believe that this alteration to the plan would have any impact on the number of lots which could be developed out of Parcel A or to their value.
The court finds the plaintiffs' approach to the development of Parcel B to have the greater merit. The court cannot agree with the defendant's approach of limiting the value of the Parcel B subdivision by preserving the main house on an oversized 2.4-acre tract and including a 1.65-acre lot immediately to the south of that parcel. The availability of sewers, the topography of the land and the relative absence of wetlands from that portion of the property would allow for more intensive development and yield a higher value for that portion of the property. In addition, it appears that the location and size of certain lots on the defendant's plan were not made on the basis of a rational subdivision of the land, but rather to annex to Parcel B those portions of Parcel A which the defendant found most desirable.
Because the court is of the opinion that none of the plans submitted thus far represents the highest and best use of both Parcel A and Parcel B as a whole, the court must make its own analysis of the development potential of the two Parcels before it can determine how the property can be equitably partitioned.
HIGHEST AND BEST USE — COMPARABLE VALUES
Once the availability of sewers was established, it is clear that the highest and best use of both Parcel A and Parcel B would be for development as residential subdivisions conforming with the requirements of the R-20 zone. The court's analysis of such subdivision and the valuation of each Parcel is discussed below. The court finds that the development costs, holding costs, absorption periods for each of the properties are comparable and can therefore be disregarded in determining the relative values of the two Parcels. It should be noted, however, that the values determined by the court are gross values, undiminished by such costs.
THE SUBDIVISION OF PARCEL A
Assuming a cul-de-sac rather than a semicircular subdivision road, a subdivision of the portion of Parcel A between Charles Brook and Bible Street would yield twenty lots. Eighteen would be approximately one-half acre, while two would be slightly larger than one acre in area. These lots would front on Bible Street and on the new subdivision road. In addition, two one-acre lots could be created on the portion of Parcel A south of Strickland Brook; these lots would served by an accessway from Pleasant Street through the R-7 lot forming part of Parcel A.
THE SUBDIVISION OF PARCEL A — VALUATION
The appraisers retained by the parties agree that each of the eighteen half-acre foot lots would have a value of $775,000 each, while each of the four one-acre lots would be worth approximately $1,000,000 each. The total gross value of all twenty-two lots created out of Parcel A would be $17,950,000.
THE SUBDIVISION OF PARCEL B — ORCHARD STREET REAR LOT
The most recent subdivisions plans submitted by the parties differ with respect to the potential development of portions of Parcel B within the "panhandle." Both concepts include a lot fronting on Orchard Street and containing the existing caretaker's cottage. In the defendant's plan only one lot of approximately one acre lies within the "panhandle." The plaintiffs include a rear lot (flag lot) reached either by a twenty-foot accessway from Orchard Street or, alternatively, directly from Pleasant Street over a fifty-foot frontage which the "panhandle" section of Parcel B enjoys. The area of the proposed rear lot is not within a mapped wetlands. However, it lies at a relatively low elevation. During the court's visit to the site waterfowl were observed to be swimming in shallow water which had accumulated within the area of the proposed rear lot. There had not been recent heavy rains in the period immediately before the court's visit to the property.
The R-20 zone requires a minimum street frontage of 100 feet. Consequently a variance would be required, if Pleasant Street were used as the access for the rear lot.
The rear lot borders three of the residences constructed on Pleasant Street and Berge Street and lies within 100 feet of four other developed residential lots. It is not unreasonable to assume that neighborhood opposition to the development of the rear lot would be voiced at any hearing before the Planning and Zoning Commission for subdivision approval or before the Planning and Zoning Board of Appeals should a variance be sought.
Pursuant to General Statutes § 8-8(a)(1) each of these seven property owners would be statutorily aggrieved by any decision of the Planning Zoning Board of Appeals or the Planning Zoning Commission involving Parcel A.
Considering all these factors the court agrees with the defendant that the development of the rear lot in the "panhandle" would prove to be unfeasible. Consequently, the court believes that in any subdivision of Parcel B the "panhandle" could either be used as one lot approximately one acre in area, or as a half-acre lot with the balance allocated to open space required under the regulations.
THE SUBDIVISION OF PARCEL B — NUMBER AND VALUE OF LOTS
For purposes of this analysis the court will assume that the "panhandle" is developed as a single half-acre lot with the balance being devoted to open space. The Plaintiffs' plan calls that the construction of a subdivision road running north from Pleasant Street and the creation of ten lots of approximately one-half acre each and one lot containing one and half acres in the main portion of Parcel B. The large lot contains a substantial area of wetlands. Approximately 4.5 acres would be set aside for open space. Assigning a value of $775,000 to each of the eleven half-acre foot lots and $1,000,000 to the single oversized lot (on the assumption that the wetland area does not contribute to the value of the lot), the gross value of Parcel B would be $9,525,000. Testimony from the various appraisers indicated that while the structures on Parcel B were functional and habitable, they did not contribute significantly to the value of that Parcel. Consequently, the court has disregarded any potential value of these improvements in reaching its valuation of Parcel B.
PARCEL C — VALUE AND ALLOCATION
The only testimony as to the value of Parcel C was offered by defendant's appraiser, Mark Stevens. He admitted that the value would be difficult to set because of the unusual nature of the property. Nevertheless, he ventured a guess that its value to a large intact estate would be $100,000. However, as an appurtenance to a half-acre lot, he believed that it might have little or no value. Historically, the enjoyment of Parcel C has been associated with the occupancy of the main house on Parcel B. In view of the defendant's stated intention of preserving Parcel B as an intact estate, it would be appropriate to value Parcel C at $100,000 if that Parcel is assigned to her.
On the other hand, the Town is now the owner of the Pomerance property which surrounds Parcel C. Evidence was offered that the Pomerance property is currently used for passive recreation purposes. If Parcel C were to be assigned to the Plaintiff's share it would be included in the property to be conveyed to the Town. The extinguishment of private property in the midst of what is likely to become a public park avoids the creation, control, access, security and liability issues which the Town undoubtedly would be anxious to avoid. The avoidance of such issues is probably worth the same value of $100,000 as Parcel C would be worth to an intact estate.
COMBINED VALUATIONS
Based on the foregoing the analysis the court finds the preliminary gross value of all three parcels to be $27,575,000. The combined value of Parcels A and C of $18,050,000 represents 65.5% of the total, slightly less than the 66 2/3% to which the plaintiffs are entitled. The value of Parcel B, $9,525,000 represents 34.5% of the total, slightly more than the 33 1/3% to which the defendant is entitled.
In Fernandes v. Rodriguez, 255 Conn. 47, 59, 761 A.2d 1283 (2000), the court approved of an award of money damages "if an order of partition in kind results in minor inequities." After considering the slight difference between the award and an ideal partition as well as the high value of the property awarded to each of the parties, the court does not find that equity requires that money damages in any amount be awarded to the plaintiffs.
Accordingly, the court orders that the property be partitioned into two shares. The plaintiffs' share shall consist of the area labeled "Proposed Parcel A Total Area 30.74 acres" on exhibit 120; and Parcel C. Parcel C may be better described as "The area labeled `Barbara Tuchman, Tract 3, Area .2+/-Ac.' on exhibit 1 (Map #3341 recorded in the Greenwich Land Records). The defendant's share shall consist of the area labeled "Proposed Parcel B, Total Area 12.52 acres" on exhibit 120.
ORDERS
The plaintiffs are directed to prepare a plot plan and legal descriptions reflecting the partition of the property in accordance with this opinion. The legal descriptions will be incorporated into the decree in accordance with General Statutes § 52-497.
"Each decree for a partition under section 52-495 and 52-496, together with any actions taken under the decree, shall be recorded in the land records of the town where the real property lies . . ."
David R. Tobin, Judge