2012-039, Town of Newbury v. Steven P. Landrigan & a.

into a single lot. We affirm. conduct and that of their predecessors had merged two non - conforming parcels (2008). The respondents argue that the trial court erred in finding that their See RSA 674:35 (2008) (amended 2012); RSA 676:15 (2008); RSA 676:16 of Newbury (Town), for injunctive relief and the imposition of a $2,000 fine. subdivided their property and granting the request of the petitioner, the Town an order of the Superior Court (M cNamara, J.) finding that they unlawfully BASSETT, J. The respondents, Steven and Philomena Landrigan, appeal

Marshall on the brief and orally), for the respondents. D'Amante, Couser, Pellerin, & Associates, P.A., of Concord (Bruce J.

orally), for the petitioner. Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and

No. 2012 - 039 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

subdivided the property. The res pondents countered that they did not need 3 and 4 to themselves without planning board approval, they unlawfully merge, and that consequently, when the respondents separately conveyed lot s The Town argued that the conduct of the prior owners caused lots 3 and 4 to property without prior planning board approval in violation of RSA 676:16. an action in superior court claiming that the respondents had subdivided their In response to the deeding of the property as separate lots, t he Town filed

survey plats recorded by the respondents approved by the plann ing board. time did the respondents seek or obtain subdivision approval, nor were the deeds purporting to transfer the property to themselves as separate lots. At no l ot s 3 and 4, which was not labeled. In p. 2 2010, the respondents executed two recorded two more survey plats, each of which showed a solid line separating shows l ot s 3 and 4 separated by a dotted line labeled “Old Line.” In 2008, they In 2006, the respondents recorded a survey plat of the property, which

and 4. the property’s exterior boundaries and not from the 1935 lot line between lots 3 a building permit. In that application, they described setbacks measured from understood that they were buying a single lot. Later that year, they applied for preceding deed. At the time the respondents purchased the land, they deeds and a “meaning and intending” clause referring to the immediately deed contained the same metes and bounds description as the three prior In p. 2 2004, the property was transferred by deed to the respondents. That

referred to the previous deed. Each deed in the chain of title contained a “meaning and intending” clause that parcel. The property description did not refer to any internal boundary lines. the remaining portion of lot 4, lot 3, the four “cottage lots,” and the triangular deed contained a n identical metes and bounds description that encompassed Subsequently, the property was transferred by deed three times. Each

property). of lot 4, the “cottage lots,” and the triangular parcel of land as a single lot (the land. Around this tim e, the Town began assessing lot 3, the remaining portion 1973, the Town deeded to the original owner a n adjacent triangular parcel of 197 p. 2 2, the original owner deeded the southern portion of l ot 4 to an abutter. In however, it does not show an internal boundary line between l ot s 3 and 4. In cottage lots. The plan identifies boundary lines separating the “cottage lots”; In 1961, the original owner recorded a plan depicting lots 3, 4 and the

original owner four small “cottage lots” adjacent to lots p. 3 3 and 4. private party (the original owner). Thereafter, the Town also deeded to the 1935, the Town deeded two contiguous lots, known as lot 3 and l ot 4, to a The trial court found, or the record supports, the following fact s. In 3

abo lished. We disagree. merged the lots because the common law of merger by conduct has been the trial court erred in ruling that their conduct and that of their predecessors the property always has been and continues to be two lots. They assert that approval. They contend that subdivision approval w as not necessary because penalty of $1000 for each lot transferred. The respondents did not obtain such any required subdivision approval from the planning board is subject to a RSA 676:16, any person who transfers land in the Town without first obtaining to regulate the subdivision of property. See RSA 674: p. 3 35, I, II. Therefore, u nder Pursuant to RSA 674:35, the Town has granted its planning board power

unsupported by the evidence nor legally erroneous. that follow, we conclude that the trial court’s deter mination was neither 146 N.H. 517, 519 (2001) (quotation and brackets omitted). For the reasons evidence or is legally erroneous.” Town of Windham v. Lawrence Sav. Bank, uphold the decision of t he superior court unless it is not supported by the sufficiency of the evidence to support its decision. “In a land use case, we will court’s application of the merger by conduct doctrine and the weight and We construe the respondents ’ first five arguments as challenging the trial

to treat, the property as separate lots. ruling that they were estopped from treating, and that it would be inequitable comprising their property had been merged for fifty years or more; and (6) prepared by the respondents’ expert; (5) finding that the historical lots record; (4) relying u pon the testimony of the T own’s expert to con strue a survey did not support their contention that the property consiste d of separate lots of im properly subdivided thei r property; ( p. 3 3) determining that their chain of title applying the doctrine of merger by conduct; (2) concluding that they had On appeal, the respondents argue that the trial court erred by: (1)

their property as a single building lot.” [respondents] and their predecessors have [allowed] the Town of Newbury to tax separate lots would be inequitable because “[s]ince the early [1970 s] the court relied upon the doctrine of estoppel to find that treating the property as they believed they w ere securing a single parcel of land.” Alternatively, the trial 2 lots” and noted that “[a]t the time the [respondents] purchased the property, the property do not support the [respondents’] position that they currently own lot for 50 years or more.” The trial court reasoned that “[t]he deeds involving owners have treated the property, it has been merged and treated as a single 676:16, finding that “[g]iven the manner in which the current and former had unlawfully subdivided their property in violation of RSA 674: p. 3 35 and RSA F ollowing a n evidentiary hearing, the court ruled that the respondents

merged. planning board approval to subdivide the property because the lots had never p. 4 4

Sullivan, 1 p. 4 49 N.H. 774, 780 (2003). Here, the record contains ample support evidence was presented, including tha t of the expert witnesses.” Cook v. province of the trial court to accept or reject, in whole or in part, whatever Atkinson v. Malborn Realty Trust, 164 N.H. 62, 67 (2012). “It is within the trial court is “not required to believe even uncontroverted evidence,” Town of evidence,” id., mindful that in evaluating evidentiary weight and credibility, the measuring the credibility of witnesses, and determining the weight to be given court’s judgment on such issues as resolving conflicts in the testimony, law.” Sutton, 160 N.H. at 55 (quotation omitted). “[W]e defer to the t rial affirm the trial court’s legal rulings unless they are erroneous as a matter of court’s factual findings unless they are unsupported by the evidence and will resulted in the merger of lots 3 and 4. We disagree. “We will affirm the trial insufficient to find that their conduct and that of their predecessors in title had The respondents also argue that the evidence before the trial court was

p. 4 479 (quotation omitted). abandonment or abolition of the individual lot lines.” Robillard, 120 N.H. at independent of any town ordinance, “by behavior which results in an rule that owners can effectuate a merger of contiguous, non - conforming lots, See id. at 46 - 50, 53 - 58. Therefore, Sutton does not abrogate the longsta nding did not address, nor did the facts implicate, the doctrine of merger by conduct. merging lots pursuant to its zoning ordinance. Sutton, 160 N.H. at 54 - 55. We the right to merge contiguous lots, precludes a t o wn from automatically related but distinct issue – whether RSA 674:39 - a, which gives property owners specifying the conditions of merger.” In Sutton, however, we addressed a for a voluntary merger or the lots [are] merged pursuant to a local ordinance is when “either the present or former owners [apply] to the local planning board overrule our prior cases and to establish that the only way lots can be merged The respondents read Sutton v. Town of Gilford, 160 N.H. 43 (2010), to

in the merger of the two prior non - conforming lots. Id. at p. 4 480. held that such conduct “effectively erased the individual lot lines” and resulted frontage and area of the two contiguous, non - conforming lots. Id. at 478. We owner had obtained a building permit for a duplex r elying on the combined in the merger of two non - conforming lots. Robillard, 120 N.H. at 479. That of Hudson, 120 N.H. 477 (1980), we held that a n owner’s conduct had resulted case had not done so. Tra - Se a Corp., 119 N.H. at 942 - 43. I n Robillard v. Town abolishing individual lot lines,” although we concluded that the owner in that the merger of the non - conforming lots “by abandoning the property or conforming grandfathered lots may lose that grandfathered status and cause Tra - Sea Corp., 119 N.H. 937 (1979), we stated that an owner of adjacent non adjacent lots is well established in New Hampshire. In Town of Seabrook v. The doctrine that landowners’ con duct can result in the merger of p. 5 5

of the respondents’ surveyor. canno t say that the trial court erre d when it chose not to credit the testimony testimony.” Malborn Realty Trust, 164 N.H. at 67. U pon this record, we weight accorded to it. Id. It is “not required to believe even uncontroverted trial court is free to accept or reject expert testimony and to determine the who drafted the 2006 survey plat, as to the meaning of the dashed line. T he argument that the trial court erred in not adopting the opinion of their expert, evidence. Cook, 149 N.H. at 780. Similarly, we reject the respondents’ it was the province of the trial court to determine the weight to give this the original owner’s intention to abandon the internal boundary lines. Further, H owever, the inaccuracies are not material, and the 1961 plan is probative of and, argue that, therefore, the trial cour t should not have relied upon it. The respondent s correctly note that the 1961 plan contains inaccuracies

whole. plat refers to t he entire property as a single parcel and states its acreage as a abandoned as to the property being separate parcels.” In addition, the 2006 property with internal dash lines, the internal lines indicate that they’ve been that “[w]hen you have a plan that shows solid lines around the perimeter of the line, labeled “Old Line,” bisecting a larger single lot. The Town’s expert testified a survey plat that again depicts the original internal boundary with a dashed designating the perimeter with a solid line. In 2006, the respondents recorded id entifies the internal boundary between lots 3 and 4 with a dashed line while not show a boundary line between lots 3 and 4. A second plan, filed in 1972, depicting the property as a single lot. The first plan, recorded in 1961, does Furthermore, at least three plans were filed at the registry of deeds

subject property. “cottage lots” and the triangular parc el have since been incorporated in to the lot 4 was sold in 1972, an d, as the respondents’ expert admitted at trial, the conveyance from the Town to [the original owner], no longer exist[s].” P art of (1944). Moreover, as the trial court observed, “lot 4 as it existed in the 19 3 p. 5 5 “meaning and intending clause.” See Finlay v. Stevens, 93 N.H. 124, 129 bounds description will prevail over a general reference to a prior deed in a of two lots. We agree with the Town, however, tha t an unambiguous metes and contend, refer bac k to the 1935 deed and show that the property i s comprised of “meaning and intending clauses” contained in the deed s, which, they The respondents argue that these property descriptions should be read in light describe the property by metes and bounds as a single “tract or parcel of land.” Beginning i n 1975, t he deeds in the respondents’ chain of title uniformly

abandoned the lot line described in the 193 p. 5 5 deed. for the trial court’s conclusion that the respondents and their predecessors p. 6 6

DALIANIS, C.J.