436 A.2d 27
The plaintiffs Angelo and William Delfino and the defendant Helen C. Vealencis own as tenants in common an approximately 20.5 acre parcel of land in Bristol, Connecticut, together with the defendant's dwelling located at the extreme western end of the parcel.1 The plaintiffs hold an undivided 99/144 interest in the property and the defendant holds a 45/144 interest.2 The defendant occupies the dwelling and a portion of the land from which she operates a rubbish and garbage removal business that her family has conducted on the premises since the 1920s.3 The plaintiffs, one of whom is a residential developer, propose to develop the property into forty-five residential building lots upon partition.4
The 20.5 acre parcel is basically rectangular in shape, abutted by Dino Road and Lucien Court, with access to Birch Street provided by a right-of-way.5 The defendant's business operations consist of overnight parking, repair and storage of trucks and dumpsters along with office work, with no refuse deposited on the property.6 The city of Bristol has granted the defendant the appropriate permits and licenses each year.7
In 1978 the plaintiffs brought an action in the trial court seeking a partition of the property by sale with division of the proceeds according to the parties' respective interests.8 The defendant moved for a judgment of in-kind partition and the appointment of a committee to conduct the partition.9 The plaintiffs had originally asked in the alternative for a physical partition but later moved for a judgment of partition by sale.10 After a hearing, the trial court concluded that a partition in kind could not be had without material injury to the respective rights of the parties.11 The court ordered that the property be sold at auction by a committee with the proceeds paid into the court for distribution.12
The trial court's conclusion rested on findings concerning the situation and location of the parcel, its size and area, the physical structure and appurtenances on the property, the present and expected continued use by the defendant, the property's zoning classification, and the plaintiffs' proposed subdivision plans.13 The court found that approval by the city planning commission for subdivision would be difficult to obtain if the defendant's business continued, that lots might not sell or might sell at lower prices, that three proposed lots would have to be consolidated and lost if the defendant received the one-acre parcel containing her residence and business, and that a proposed road extension would have to be rerouted.14 The trial court also found that the defendant's use of a portion of the property is in violation of existing zoning regulations. The defendant appealed, claiming that the trial court's conclusion that the parties' interests would best be served by a partition by sale is not supported by the findings of subordinate facts.15 The defendant also claimed that the court improperly considered the zoning regulations and economic impact factors in arriving at that conclusion.16 In addition, the defendant claimed that the court failed to include in its findings of fact a paragraph of her draft findings reciting that her use is a valid nonconforming use.17 The parties introduced only inconclusive and hearsay testimony regarding the zoning regulations and the date of their enactment, and never introduced the zoning regulations themselves into evidence at the hearing.18
Whether the trial court properly concluded that a physical partition of the property could not be had without material injury to the parties' rights?19
General Statutes § 52-500 authorizes a court to order a sale of property owned by two or more persons when a sale will better promote the interests of the owners.20 However, it has long been the policy to favor partition in kind over partition by sale.21 A partition by sale should be ordered only when two conditions are satisfied.22 First, the physical attributes of the land are such that a partition in kind is impracticable or inequitable.23 Second, the interests of the owners would better be promoted by a partition by sale.24 The burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests.25
No. The property consists of one 20.5 acre parcel basically rectangular in shape with only two competing ownership interests.26 These facts demonstrate that a partition in kind clearly would be practicable under the circumstances of this case.27 The trial court improperly concluded that a physical partition could not be had without material injury to the parties' rights.28
The trial court improperly concluded that a physical partition could not be had without material injury to the parties' rights.
Whether the trial court's conclusion that a partition by sale would best promote the interests of the owners was supported by the subordinate findings of fact?29
Under the test for ordering a partition by sale, the court must first consider the practicability of physically partitioning the property.30 The court must then determine whether a partition in kind would promote the best interests of the parties by comparing the consequences of a partition in kind with those of a partition by sale.31 It is the interests of all of the tenants in common that the court must consider and not merely the economic gain of one tenant or a group of tenants.32
No. The trial court concluded that a partition in kind could not be had without great prejudice to the parties since the continuation of the defendant's business would hinder or preclude the development of the plaintiffs' parcel for residential purposes.33 The court's concern over the possible adverse economic effect upon the plaintiffs' interest was based essentially on findings regarding planning commission approval, lot sales, loss of building lots, and road rerouting.34 The trial court failed to give due consideration to the fact that one of the tenants in common has been in actual and exclusive possession of a portion of the property for a substantial period of time.35 The tenant has made her home on the property.36 She derives her livelihood from the operation of a business on this portion of the property.37 A partition by sale would force the defendant to surrender her home and perhaps jeopardize her livelihood.38
The subordinate facts do not support the conclusion that a partition by sale would better promote the interests of the owners.39
The trial court's conclusion that a partition by sale would best promote the interests of the owners was not supported by the subordinate findings of fact.40
Whether the trial court improperly considered the zoning regulations and economic impact factors in determining that a partition by sale was appropriate?41
Any forecast regarding what a public body such as a planning commission will decide must be carefully scrutinized as it is difficult to project what a public body will decide in any given matter.42 There must be substantial evidence to support a conclusion that it was reasonably probable that the planning commission would not approve a subdivision plan.43 The court must consider the interests of all tenants in common rather than merely the economic gain of one group.44
Yes. The trial court found that the defendant's use of a portion of the property is in violation of the existing zoning regulations. The court inferred from this finding that it is not likely that the defendant will be able to continue her rubbish hauling operations from this property in the future.45 The court premised its forecast that the planning commission would reject the plaintiffs' subdivision plan on the finding that the defendant's use was invalid.46 The parties introduced only inconclusive and hearsay testimony to establish their respective positions on the zoning issue.47 They never introduced the zoning regulations and the date of their enactment into evidence at the hearing.48
The court's remaining observations relating to the effect of the defendant's business on the probable fair market value of the proposed residential lots, the possible loss of building lots, and the rerouting of a proposed subdivision road are not dispositive of the issue.49
The trial court improperly considered the zoning regulations and economic impact factors in determining that a partition by sale was appropriate.50
Whether the trial court erred in refusing to include in its findings a paragraph from the defendant's draft findings regarding the status of her business use?51
A party claiming error in the refusal to include a paragraph of draft findings must demonstrate that the paragraph was either admitted or undisputed by the opposing party.52 Where the zoning regulations and the date of their enactment were never introduced into evidence and only inconclusive and hearsay testimony was presented, the paragraph of the draft finding cannot be added to the finding.53
No. The defendant claims that the trial court erred in finding that the defendant's use of a portion of the property is in violation of the existing zoning regulations and in refusing to find that such use is a valid nonconforming use.54 The plaintiffs properly point out that the defendant failed to demonstrate that the paragraph of the draft finding that recites that the defendant's use is nonconforming was either admitted or undisputed by the plaintiffs.55 An examination of that portion of the parties' briefs directed to this issue discloses that the zoning regulations and the date of their enactment were never introduced into evidence at the hearing below.56 The parties introduced only inconclusive and hearsay testimony to establish their respective positions on this issue.57
This deficiency in the evidence requires the conclusion that the particular paragraph of the defendant's draft finding cannot be added to the finding.58
The trial court did not err in refusing to include in its findings the paragraph from the defendant's draft findings regarding the status of her business use.59