Posted by: Patricia Salkin | September 24, 2013

NH Supreme Court Upholds Finding of Lot Merger of Two Nonconforming Lots

The Landrigans appealed an order finding that they unlawfully subdivided their property, that the Town was entitled to injunctive relief, and the imposition of a $2,000 fine. The Landrigans argued that the trial court erred in finding that their conduct and that of their predecessors had merged two non-conforming parcels into a single lot.

In 1935 the Town deeded lots 3 and 4, along with four more smaller “cottage lots” adjacent to them to the original owners. In 1961, the original owner recorded the plan for the above lots that showed boundary lines separating the “cottage lots” but it did not show an internal boundary line between lots 3 and 4. In 1973, the town deeded another adjacent, triangular, parcel of land. Also, around this time, the town began assessing lot 3, lot 4, the “cottage lots,” and the triangular parcel of land as a single lot the (“property”). The property was transferred by deed three times. Each deed containing an identical metes and bounds description that encompassed the property. The description did not refer to any internal boundary lines. Each deed that was transferred contained a “meaning and intending” clause that referred to the previous deed as well.

In 2004, the property was transferred by deed to the respondents. That deed contained the same metes and bounds description as the three prior deeds and a “meaning and intending” clause referring to the immediately preceding deed. At this time the respondents understood that they were buying a single lot. Later that year, they applied for a building permit. In their application, they treated the property as a single lot by describing setbacks that were measured from the property’s exterior boundaries and not from the 1935 lot line between lots 3 and 4. In 2006, the respondents recorded a survey plat of the property, which showed lots 3 and 4 separated by a dotted line labeled “Old Line.” In 2008, they recorded two more survey plats, each of which showed a solid line separating lots 3 and 4, which was not labeled.

In 2010, the respondents executed two deeds to transfer the property to themselves as separate lots. The respondents never sought to obtain subdivision approval, nor were the survey plats approved by the planning board. In response to the respondent’s actions the Town commenced an action in court claiming that the prior owners caused lots 3 and 4 to merge, and that the respondents had subdivided their property without board approval in violation of RSA 676:16. The respondents claimed that they did not need planning board approval to subdivide the property because the lots had never merged.

The trial court held that the evidence supported the finding that when the plot plan showing no boundary line between lots 3 and 4 was recorded, the respondents and their predecessors, through their conduct, abolished the line between the two lots described in the 1935 deed. There was ample evidence showing it had been merged and treated as a single lot for 50 years or more. They granted the town’s injunctive relief and imposed a $2,000 fine on the respondents. The trial court also relied upon the doctrine of estoppel to find that treating the property as separate lots would be inequitable because since the 1970s the respondents and their predecessors have allowed the Town to tax their property as a single building lot.

This appeal to Supreme Court ensued. The court concluded that the trial court’s determination was neither unsupported nor legally erroneous because the town gave its planning board the power to regulate the subdivision of property. The court stated that under RSA 676:16, any person who transfers land in the Town without first obtaining any required subdivision approval from the planning board was subject to a penalty of $1000 for each lot transferred. Here, the respondents did not obtain an approval because they argued that the subdivision approval was not necessary because the property always had been two lots. They argued that the trial court had made an error because the common law of merger by conduct had been abolished. The court disagreed and stated that the doctrine that landowners’ conduct can result in the merger of adjacent lots is well established in New Hampshire by case law.

The respondents also argued that the trial court made an error in finding that their conduct and that of their predecessors had resulted in the merger of lots 3 and 4. The court disagreed finding that the record supported the trial court’s conclusion that the respondents and their predecessors abandoned the lot line.

The respondents argued that the property descriptions should be read in light of “meaning and intending clauses” contained in the deeds, which, they contend, refer back to the 1935 deed and show that the property was two lots. However, the court stated that an unambiguous metes and bounds description will win over a general reference to a prior deed in a “meaning and intending clause.” Moreover, the respondents’ expert admitted at trial, the “cottage lots” and the triangular parcel have since been incorporated into the property. Furthermore, at least three plans were filed depicting the property as a single lot.

Similarly, the court also rejected the respondents’ argument that the trial court made an error in not adopting the opinion of their expert, who drafted the 2006 survey plat, as to the meaning of the dashed line. The court stated that the trial court had discretion to accept or reject testimony from an expert and to determine the weight accorded to it and that they are not required to believe even uncontroverted testimony. The respondents argued that, because the Town drafted the building permit application form, it would be unreasonable and unconscionable for the court to rely on the representations made in applications. The court did not agree, because regardless of the origin of the form itself, the respondents described the setbacks measured from the external boundary of their property, and not from the 1935 line between lots 3 and 4.

Town of Newbury v. Landrigan, 2013 WL 4446784 (NH 4/21/2013)

The opinion can be accessed at:

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