Opinion
FSTCV135014138S
01-20-2016
Luz Bueno et al. v. Michael Firgeleski et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
A. William Mottolese, Judge Trial Referee.
The plaintiffs are the owners of 1.38 acres of land on the easterly side of Hoyt Street in the Town of Darien and known as 123 Hoyt Street. The property is improved with a dwelling house with outbuildings. The house is situated northerly of the center line of the lot thereby making the southerly portion available for development in accordance with the Darien zoning regulations. However, in order to erect a single-family dwelling on that portion of the lot the plaintiffs must subdivide the land into two lots which would result in a building lot of at least 1/2-acre in area. When the plaintiffs acquired the property on June 16, 2008 by trustee's deed, the deed contained the following provision among others:
Said premises are conveyed subject to the following:
Restrictive covenants and agreements set forth in a deed from Arthur I. Crandall, Committee, to Clyde E. Vaughn dated June 5, 1941, recorded in Book 100 at Page 139 of said land records.
That restriction reads as follows:
This deed is given by the grantor and accepted by the grantee upon the following restrictive covenants and agreements, which shall run with the land hereby conveyed and be binding upon the grantee, his heirs and assigns forever viz: (1) said premises shall be used for private residential purposes only, and shall be limited to the erection thereon of one dwelling house and accessory buildings; (2) no building shall be erected within fifty (50) feet of the easterly line of said premises, nor within twenty-five (25) feet of the Southerly line thereof; and (3) no building, structure or erection of any kind shall be erected or maintained on said premises, unless the plans therefore shall have been approved in writing by the grantor, or his successors, provided, that such approval shall not be unreasonably withheld.
The plaintiffs seek declaratory relief from this restrictive covenant (hereinafter referred to as " restriction") so they will be able to sell off the southerly portion of their property for development in accordance with the Darien zoning regulations. Compliance with the minimum zoning side-yard setback for the R-1/2 zone would violate the restriction's 25-foot setback from the southerly line.
Because the proposed lot area is located in both the R-1/2 (1/2-acre) and R-1/3 (1/3-acre) zones it must comply with the requirements of the R-1/2 zone which it is able to do.
The operative complaint is the substitute complaint of March 4, 2014. The plaintiffs are self-represented which undoubtedly accounts for the fact that although it alleges several grounds for why the restriction is unenforceable, the complaint is not framed in separate counts. On August 11, 2014 the court (Mintz, J.) struck that portion of the complaint which sought to quiet title leaving only the request for declaratory judgment. The plaintiffs assert that the restriction is unenforceable (a) because when it was created in 1941 it was done so " against court orders and therefore is invalid"; (b) there has been a change in circumstances which render the restriction invalid or least unenforceable; (c) part, if not all of the restriction has been abandoned; (d) the restriction does not benefit anyone; (e) the restriction is unfair to the plaintiffs; (f) the action is barred by laches; (g) the restriction was extinguished pursuant to the Connecticut Marketable Title Act (C.G.S. § § 47-33b through 47-33l). The defendants are the owners of single-family homes which abut the plaintiffs' property to the north south and east. They have filed a motion to dismiss on the grounds that (1) there is no bonafide question or issue in dispute between the parties; (2) the complaint does not present a justiciable claim; (3) the original grantor who created the restriction has not been made a party. While grounds 1 and 2 present mixed questions of fact and law which can only be addressed by analyzing all the evidence in terms of the applicable law, the third ground can be addressed at the outset.
The defendants argue in support of grounds number 3 that because the restriction was created by Arthur I. Crandall (hereinafter " Crandall") who acted as committee appointed by the Superior Court in a partition action to sell real property owned by the estate of Wilbur Waterbury, he as grantor of the property or his successor is an indispensable party because only he has the " power to enforce or provide approval for subdivision and/or building on subject premises." During the course of the trial, in response to a question from the court, counsel for the defendants acknowledged that both Crandall and Richard W. Fitch, his successor, were no longer living. Nevertheless, counsel argued that the plaintiffs were obliged to apply to the Superior Court in order to have a successor committee appointed who would then become an " interested party" and who should then be joined as a defendant in this action.
Section 17-56(a)(6)(b) of the Practice Book provides in pertinent part as follows:
" (a) Procedure in actions seeking a declaratory judgment shall be as follows: (b) All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof ." (Emphasis added.)
Pursuant to an order of notice of this court delivered from the bench on June 17, 2015 the plaintiffs caused to be published the following legal notice in the Darien Times on July 9 and 15, 2015. The legal notice reads as follows:
NOTICE TO: ARTHUR I. CRANDALL, COMMITTEE, HIS HEIRS, SUCCESSORS AND ASSIGNS, RICHARD W. FITCH, SUCCESSOR COMMITTEE, HIS HEIRS, SUCCESSORS AND ASSIGNS, AND ALL PARTIES WHO MAY CLAIM AN INTEREST IN ANY RESTRICTIVE COVENANTS THAT APPEAR IN A COMMITTEE DEED IN BOOK 100, PAGE 139 OF THE DARIEN, CT LAND RECORDS.
The plaintiffs have commenced an action which they are prosecuting in the above named court seeking a declaratory judgment rendering a deed restriction imposed on 123 Hoyt Street in Darien, CT, and further described in the committee deed in said volume and page, as null and void. All interested parties may review and obtain copies of the pleadings at the Office of the Clerk of the Superior Court of Connecticut, located at 123 Hoyt Street in Stamford, CT. 7-9-7-16
The court deems the legal notice to constitute reasonable notice to the successors, if any to Crandall and Fitch and anyone else who may claim an adverse interest. Without analysis, the defendants claim that reasonable notice is not enough but that the plaintiffs should have applied to the Superior Court for the appointment of a successor committee and joined him as a defendant.
Ordinarily, when an issue receives only cursory attention in brief or argument without substantive discussion or citation of authority it is deemed to be abandoned. Conn. Light & Power Co. v. Dept. Of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
While not raised by the plaintiffs undoubtedly because of their unfamiliarity with our rules of practice, P.B. § 11-3 provides that " the exclusive remedy for nonjoinder of parties is by motion to strike." P.B. § 10-39(a) requires that a motion to strike be used whenever any party wishes to contest the absence of any necessary party or, pursuant to § 17-56(b) the failure to join or give notice to any interested person. Section 10-39(d) provides as follows:
(d) A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56(b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action.
While the defendants have not moved to strike the complaint on this ground they have alleged in their third special defense that the " plaintiffs have failed to bring suit against all parties in interest." Nevertheless, our Appellate Court has consistently held that nonjoinder of a party is not a jurisdictional issue. W.G. Glenney Co. v. Bianco, 27 Conn.App. 199, 202, 604 A.2d 1345 (1992). Notwithstanding this rule, our Supreme Court held in Bender v. Bender, 292 Conn. 696, 722-23, n.23, 975 A.2d 636 that: " because of the definition of indispensable party and its relation to the proper disposition of an action, it is necessary for us to review the . . . claim even though [the defendant] did not move to strike the plaintiff's complaint." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995). Specifically, the nonjoinder of indispensable parties may violate due process because such parties must be given notice and an opportunity to protect their interests. Id., 722-23. We therefore review the trial court's decisions on the merits of the joinder issue even though the defendants failed to file a proper motion to strike."
Consequently, this court must review the defendants' claim to make certain that the failure to join a successor committee to Arthur I. Crandall or Richard W. Fitch does not implicate due process rights. The court concludes that it does not simply because the order of notice caused " reasonable notice" to be given to the successors and assigns of these committees. Additionally, there would be no point in making a successor committee a party defendant because the committee, as committee, has no ownership interest of his own in the real estate. He is the " mere agent of the court and the court is the vendor." Raymond v. Gilman, 111 Conn. 605, 613, 151 A. 248 (1930). " Although a committee may exercise discretion in certain of its duties, its function is more administrative than judicial in nature. A committee does not have the authority to undertake selectively certain types of activities as opposed to others; the committee carries out the mandate of the court, albeit at times using its discretion as to the method of effectuating that mandate. The committee's sphere of activity is circumscribed by the statute pursuant to which the committee is appointed, by the order of the court vesting authority in the committee and by the committee's function itself." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 632, 749 A.2d 630 (2000). This ground has no merit.
Grounds (1) and (2) of the motion to dismiss are functionally the same because they both implicate the doctrine of justiciability which is subject matter jurisdictional.
" An action for a declaratory judgment, valuable as it has become in modern practice, is not a procedural panacea for use on all occasions. The pertinent part of the rule provides that the court will not render a declaratory judgment upon the complaint of a person " unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or . . . unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties." Practice Book § 17-55. These provisions are the equivalent of saying that an action for a declaratory judgment may be employed only in solving a justiciable controversy. Board of Education v. Board of Finance, 127 Conn. 345, 347, 16 A.2d 601; see Swiss Cleaners, Inc. v. Danaher, 129 Conn. 338, 346, 27 A.2d 806. There can be no such controversy if the interests of the parties are not adverse. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617." (Emphasis in original.) (Alternate citations omitted.) Liebeskind v. Waterbury, 142 Conn. 155, 158-59, 112 A.2d 208 (1955).
" A court will not resolve a claimed controversy on the merits unless it is satisfied that the controversy is justiciable . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." Tavani v. Riley, 160 Conn.App. 669, 676, 124 A.3d 1009 (2015).
The basis of the defendants' claim of non justiciability is their assertion that they do not have similar restrictions on their properties and that they are only " potentially interested." Putting it another way, they state that they " do not maintain the legal right to authorize or reject the request of the plaintiffs in the present matter." This position is reinforced by their claim that the committee and his successors are indispensable parties to this action because only the committee is empowered to enforce the restriction. One wonders then why a judgment should not enter for the plaintiffs on this basis alone. The answer is that the plaintiffs' complaint cannot be fairly read to seek such a result.
At trial, the plaintiff, Edward den Dooven gave three reasons for bringing this action. (1) An abutting owner, Pole M. Chan, one of the defendants, remarked to him that " we have some property interests in common; (2) the plaintiffs need to know who the beneficiaries of the restriction are; (3) an attorney whom they consulted told them that " there might be a deed restriction that might prevent the sale of the lot." Chan himself testified at trial that he does not want a second house built on the plaintiffs' lot because " it would create a quality of life issue." Moreover, when the Darien zoning board of appeals denied the plaintiffs' application for a variance, the board found that " the purposed project may have significant negative impacts upon the neighboring properties."
Because the lot which the plaintiffs seek to create is located in two zoning districts they sought a variance from the regulation which required them to comply with the setbacks of the more restrictive zone and the variance was denied.
The facts of the present case bear some similarity to the facts in Tavani v. Riley, supra . Although the trial court found that there was no pending action and no question that was in dispute between the parties to this child support case and for that reason dismissed the declaratory judgment action for lack of a justiciable question, the Appellate Court reversed based upon the following reasoning.
" We determine that the plaintiff was entitled to obtain an accounting or clear ruling that he does not owe any arrearage for child support to the defendant. Although the defendant has taken no action in this matter, the interest of the plaintiff in seeking an accounting is adverse to that of the defendant, who recently attempted to pursue collection of a claimed child support arrearage against the plaintiff in Massachusetts. This Massachusetts filing by the defendant was despite her successful petition to have Connecticut Support Enforcement Services enforce and collect the child support payment from 2000 to 2009, when all the children had attained the age of majority. Additionally, the matter is capable of being adjudicated by the court, and if the court can augment its August 10, 2009 order by permitting the plaintiff to establish he owes no arrearage, the plaintiff can achieve practical relief by having the ability to prove to another forum that he has met his obligation . Therefore, the plaintiff's case meets the requirements of justiciability." (Footnotes omitted.) (Emphasis added.) Id. at 676.
Here, the interests of the defendants as expressed in the various forms described above, when coupled with their unwillingness in this proceeding to stipulate to a judgment declaring that they have no right to enforce the restriction, entitles the plaintiff to a " clear ruling that these defendants have no right to enforce the restriction, " thereby avoiding the disruption that would be caused by an action seeking to enjoin construction brought by these defendants at a later date. Moreover, as in Tavani, plaintiffs " can achieve practical relief" by having the ability to prove to a prospective purchaser of the lot that the lot is saleable and buildable because it is not subject to this restriction. The likelihood of the issue arising at that time is underscored by the advice that the attorney whom they consulted gave them that the " property might be deed restricted." For these reasons the motion to dismiss is denied. See also, 418 Meadow Street Associates, LLC v. Clear Air Partners, LLC, 304 Conn. 820, 832, 43 A.3d 607 (2012) where the court construed the word " adverse" in C.G.S. § 34-187(b) as encompassing " any interest of a member that is contrary or opposed to the limited liability company's interest in the outcome of the litigation." By this standard these defendants satisfy the " adverse" requirement by being opposed to the interests of the plaintiffs in the outcome of this litigation. The court therefore finds that the defendants' right to enforce the restriction is justiciable and the motion to dismiss on this ground is accordingly denied.
Turning now to the plaintiffs' substantive case. The plaintiffs first claim that the restriction is unenforceable because Crandall exceeded his authority when he created the restriction in the 1941 conveyance to Clyde E. Vaughan of 1.544 acres as shown on Map 1225. (Ex. 22.) The plaintiffs correctly point out that their property consists of the greater part but not all of this conveyance because it does not include the triangular piece that appears as an appendage at the north easterly corner of the parcel shown on Map 1225. The plaintiffs' argument is based on the language contained in a 1935 order of the Superior Court in a partition action by which Crandall was empowered to sell the 30-acre parcel of which the plaintiffs' property is a part. The particular language relied on is found in exhibit 1 and reads as follows:
" FIRST That Arthur I. Crandall of Stamford, Connecticut, is appointed a Committee, with the usual powers of a special master in chancery, to sell the premises described as aforesaid, either as a whole or in portions, such sale to be made free and clear of all the right, title and interest of the plaintiffs and the defendants, their heirs and assigns therein, or any other person in being or unborn, having a present or potential future interest in said premises, all of which sales shall be made on such terms and conditions as said Committee may deem best and expedient, and which sale or sales shall be made subject to confirmation by the Court." (Emphasis added.)
The plaintiffs interpret the underscored language such that it prevented Crandall from creating an interest in any person other than the person to whom he sold the property because such sale must have been made " free and clear . . . of any other person . . . having a present or potential future interest in said premises." (Emphasis added.) Thus, the plaintiffs contend that Crandall had no right to create in any other person a right to enforce a restrictive covenant on what eventually became their property.
This challenge to the validity of the restriction overlooks the fact that the deed of conveyance itself recites that the sale to Vaughn was confirmed by the Superior Court and the deed approved by the court on June 6, 1941. This act legitimized the sale as well as the deed of conveyance. Jefferson v. Karpowicz, 10 Conn.App. 198, 200, 522 A.2d 322 (1987). Thus, it is not the authority of the committee that is being attacked but rather the validity of the order of the court. Such an attack is known as a collateral attack on a judgment. A collateral attack on a judgment is " an attempt to avoid, evade or deny the force and effect of the judgment in an indirect manner and not in a direct proceeding as prescribed by law." Lorenz v. IWWC, 124 Conn.App. 489, 5 A.3d 558, 565 n.6 (2010). It is well established that domestic judgments of courts of general jurisdiction cannot be attacked collaterally. Lampson Lumber Company, Inc. v. Hoer, 139 Conn. 294, 298, 93 A.2d 143 (1952). Our Supreme Court explained the rule clearly in Valvo v. Freedom of Information Commission, 294 Conn. 534, 543, 985 A.2d 1052 (2010).
" We are aware of no authority for the proposition that a trial court [presiding over an administrative appeal] may overturn a ruling by another trial court in an entirely unrelated case involving different parties --a proposition that the plaintiffs themselves have characterized as novel. Indeed, we conclude that the claim more accurately may be characterized as completely unworkable. Our jurisprudence concerning the trial court's authority to overturn or to modify a ruling in a particular case assumes, as a proposition so basic that it requires no citation of authority, that any such action will be taken only by the trial court with continuing jurisdiction over the case, and that the only court with continuing jurisdiction is the court that originally rendered the ruling." Thus the plaintiffs may not challenge the validity of the restriction on this collateral basis.
In order to consider the remaining grounds which the plaintiffs have asserted it is necessary to trace the history of the restriction. Initially it must be understood that all of the parcels which are involved in this action came out of the 30-acre Waterbury tract. The restriction first appeared in the deeds of the defendants' predecessors in title in 1956 when Shepherd conveyed the parcel shown on Ex. 23 and the triangular piece in the northeast corner shown on Ex. 22 to Webb. At that time according to Ex. 23 (Map 1017) the greater portion of what was conveyed, namely 2.11 acres, contained a residence, a free-standing garage, an outbuilding labeled " shop" and another outbuilding which is not identified. This property was part of a 30-acre tract owned by the estate of Wilbur Waterbury and contained the Waterbury homestead. In 1971, in apparent disregard of this restriction, Webb subdivided the property into three lots. (Ex. 12.) At that time, the same buildings as are shown on Ex. 23 were located wholly on what later became Lot 2 on Map 3614. (Ex. 12.) Each of the three lots is three-quarter of an acre in area, more or less. The other two lots were unimproved. So, the deed from Shepard to Webb (Ex. 6) made the conveyance subject to the same restrictions " in so far as they affect the above described premises." (Emphasis added.) The Webbs disregarded the restriction because if the restriction was applied to the property before the subdivision, the development of the land would have been limited to the existing dwelling. Moreover, when lot 2 was made a part of the subdivision, the southerly boundary of lot 2 rendered the existing residence in violation of the twenty-five-foot setback which the restriction mandates for the southerly line because Map 3614 shows a southerly setback of only fifteen feet. Thus, when the defendant, Martins later took title to Lot 3 on Map 3614, in 2006 their deed (Ex. 7) contained the following provision:
8. The effect, if any, of restrictive covenants and agreements contained in a deed from Arthur I. Crandall, Committee, to Clyde E. Vaughan dated June 5, 1941 and recorded in Book 100 at Page 139 of the Darien Land Records. (Emphasis added.)
It is apparent that the uncertainty concerning the applicability of the restriction continued to manifest itself by use of the words " effect if any." This deed followed a prior 1991 deed in the chain (Ex. 5) which contained the identical provision. The only other deeds which were placed in evidence were to lots shown on Map 2435 (Ex. 13) all of which were part of the subdivision which is now known as Briar Brae in which all of the defendants' properties are located except Martin whose property is in a different subdivision and was dealt with above. None of these deeds contain reference to the restriction. Thus, the defendants' properties fall into two categories: first, the Martin lot (shown as Lot 3, Ex. 7) which was conveyed arguably subject to the restriction which was violated in 1971 when the subdivision of which it was a part was approved by the Darien Planning and Zoning Commission and further violated thereafter when a house was built on the Martin property. Second, all the other defendants whose lots are part of the subdivision shown on Map 2435 were conveyed to them by deeds containing no restriction whatsoever. As a result, except for the plaintiff's lot, all of the defendants' lots are either free of the restriction (Cronin, Myers, Chan, Firgeleski) or are conditionally subject to it (" effect if any") but have directly benefitted from its violation (Martin) That leaves the plaintiffs as the only owners among 35 total lots which were created out of the original 30-acre tract, who are expressly made subject to the restriction without the qualifying words " effect if any."
Neither side presented any deed in these defendants' chains of title that contain the restriction or made any reference to it.
In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee " presumptively or actually for the benefit and protection of his adjoining land which he retains." Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928). With respect to the third class of covenants, the original grantor, who is the owner of the property benefited, " and his assigns may enforce [the covenant ] against subsequent purchasers of the property burdened. If the restrictive covenant is for the benefit of the remaining land of the grantor, it is an easement running with the land and may be enforced by a subsequent purchaser of the remaining land against the prior grantee and his successors in title . . ." Id., 365. Grady v. Schmitz, 16 Conn.App. 292, 296, 547 A.2d 563, supra .
" Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor's successor in title can enforce, or release, the covenant depends on 'whether [the covenant] was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant as expressed therein, read in the light of the circumstances attending the transaction and the object of the grant.' Bauby v. Krasow, 107 Conn. 109, 112-13, 139 A. 508 (1927). (Alternate citations omitted.) Marion Road Ass'n v. Harlow, 1 Conn.App. 329, 335, 472 A.2d 785 (1984). " The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances." Id. at 329.
The court has mined the defendants' briefs in an effort to identify a legal theory under which they claim to enjoy a right of enforcement of this restriction. The sole argument made in support of such right is found at the bottom of page 14 of their Post-Trial Brief as follows:
" The Defendants have the ability to enforce the deed restrictions, as owners of the benefitted remaining land, against the Plaintiffs upon the equitable principle that prevents one having knowledge of the just rights of others from defeating those rights. Id. at 248. Therefore, this court should find that the restrictive covenant at issue is valid and enforceable."
This is the first time that the defendants have asserted such a right. The court notes that they offered no evidence to support such a claim, disavowed such a right on numerous occasions and assert the absence of such a right as a basis for their motion to dismiss.
Although the page reference is incorrect, the quotation comes from the seminal case of Stamford v. Vuono, supra . The defendants offer no analysis of how that statement from the Vuono decision supports their claims. The evidence disclosed that at the time the restriction was created the only residence on the 30-acre piece was the Waterbury homestead shown on Ex. 23. The remainder of the land was undeveloped farmland. The 2.11± acre tract shown on Exhibit 23 adjoins the plaintiff's property on the north and it too has frontage on Hoyt Street. Moreover, a view of the premises conducted in the presence of counsel revealed that except for the Martin property which fronts on Hoyt St. and Cronin (Lot 1, Ex. B), the entire remainder of the 30-acre tract is topographically distinct from the plaintiffs' property in that it is situated at a much higher elevation such that, except for Martin and Cronin who are at the same level as the plaintiffs, the defendants must look downhill to see the plaintiffs' land. For all practical purposes, it is physically isolated from the plaintiffs' property. When viewed in the context of the development of that land which includes Briar Brae (31 lots, Ex. 13) and the 3-lot subdivision (Ex. 12), it is very reasonable to infer that the creator of the restriction intended that the restriction benefit only that portion of his remaining land which is shown on Ex. 23, as containing the homestead and its service buildings. This inference is buttressed by the fact that no restriction was imposed in any of the deeds to the 31 lots which comprise the Briar Brae subdivision and the fact that the Martin lot (Lot 3, Ex. 12) was conveyed only subject to the " effect, if any" of the restriction. Thus, the Waterbury estate manifested an intent to reserve the remainder of the 30 acres, unrestricted. These indicia of intent not to burden the entire tract outweigh any other evidence including the ambivalent deed references. It is the court's belief that use of the words " effect if any" and similar words are in fact consistent with the grantor's intent. As in Marion Road Ass'n v. Harlow, 1 Conn.App. 329, 335, 472 A.2d 785 (1984), " . . . these facts bring this conveyance within that class of cases in which the restrictions " will generally be construed to have been intended for the benefit of the [retained] land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and . . . if the adjoining land retained by the grantor is manifestly benefited by the restriction, it will be presumed that it was so intended." Id. at 335, 336. Applying this rationale, it is " obvious" to the court that the restriction could have no other purpose than to protect the grantor's homestead.
It is not insignificant that the current owner of the homestead (Lot 2, Ex. 12) is not a party either by service of process or by intervention. How subsequent owners recognized the restriction is relevant to its applicability. Stiefel v. Lindemann, 33 Conn.App. 799, 807, 638 A.2d 642 (1994).
With this background the court now turns its attention to the second articulated basis for the plaintiffs' attack on the restriction, namely that circumstances in the immediate neighborhood of their property have changed drastically since creation of the restriction such that the restriction is no longer enforceable. In analyzing this claim the court will assume that the restriction was appurtenant to the land conveyed to the plaintiffs because in the language of the restriction " it shall run with the land conveyed and be binding upon the grantee, his heirs and assigns forever." " It is well settled that where a restrictive covenant contains words of succession, i.e., heirs and assigns a presumption is created that the parties intended the restrictive covenant to run with the land." Kelly v. Ivler, 187 Conn. 31, 32, 38-40, 450 A.2d 817 (1982).
The following principle informs the analysis. " Where a party seeks by way of affirmative relief to have a restrictive covenant modified or nullified on the basis of a change of circumstances he must make it manifest that its purpose has been permanently frustrated, and that the change is so great as to defeat the object of the covenant." Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 377, 5 A.2d 700 (1939). In Grady v. Schmitz, 16 Conn.App. 292, 301, 547 A.2d 563 (1988) our Appellate Court referred to this standard as a stringent standard because in a case not seeking equitable relief such as is the case when one seeks only a declaratory judgment, the remedy is more drastic. The remedy is more drastic because the relief is permanent. As the court remarked:
" Injunction may be denied because of conditions existing at the time, while as to a judgment which affects the covenants for all time it is to be considered that it is quite possible that another change may occur subsequently which would remove or materially affect the ground upon which the judgment was based. Bickell v. Moraio, supra, 186. It should be granted with caution and only when the motivating considerations are not only ample but so settled and lasting that it is manifest that the purpose of the original restriction has been permanently frustrated. The change must be " so great as clearly to neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenant." Humphreys v. Ibach, 110 N.J.Eq. 647, 653, 160 A. 531, 85 A.L.R. 980." Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. at 376-77.
It is also apparent from this case that the changed circumstances cannot be " transient." Id. at 378. For example, in that case, the minimum first construction cost per house from which the plaintiff sought relief was held to be changeable over time as prices fluctuate. In the present case the plaintiffs have alleged that the circumstances have changed so drastically that whoever had the right to enforce the restriction no longer has that right because the right has been abandoned. Abandonment is a recognized way in which a right to enforce a restrictive covenant may be lost. Cappo v. Suda, 126 Conn.App. 1, 9, 10 A.3d 560 (2011). In addition to the court's characterization of the degree of change in Lomas & Nettleton, abandonment of a right requires the " voluntary and intentional renunciation of a right but the intent may be inferred as a fact from the surrounding circumstances." Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 182, 377 A.2d 280 (1977). This court therefore concludes that in order to nullify a restrictive covenant by use of the vehicle of declaratory judgment not only must there be a drastic change of circumstances but also that change must be permanent.
Whether there has occurred such a change of circumstances as to warrant a nullification of the restriction requires a comparison of conditions as they existed at the time of creation of the restrictions with those that exist at the present time. The plaintiffs successfully proved that in 1934, seven years before the restriction was created, the 1.544-acre parcel (Ex. 22) which Crandall, as committee, conveyed to Vaughan was part of a larger 30-acre tract which was entirely undeveloped. (Ex. 15.) In fact in the same year, the heirs of William Waterbury commenced the partition action which resulted in the appointment of Crandall as committee to sell. In paragraph eight of that complaint (Ex. P) the plaintiffs allege the following:
8. In recent years, many properties in the section of the Town of Darien in which the premises described in paragraph 2 hereof are located, have been sub-divided, and many homes erected thereon, so that the character of the neighborhood has changed from a farming section to a suburban neighborhood.
The court infers from this allegation and the evidence at trial that the Waterbury property was farmland in 1934 and that the neighborhood in the vicinity had begun to change from farming to suburban. Webster's New World Dictionary, Second College Edition at 1421 defines " suburb" as " a district especially a residential district on or near the outskirts of a city." Clearly " suburban character" denotes residential character. Thus, it is reasonable to infer that in 1934, housing had begun to appear in the " section of the Town of Darien" in which this property is located. Obviously, the Waterbury property was not yet included in this suburban change but remained undeveloped. More specifically, from the evidence it can be determined that a single residence with outbuildings was in existence on the Waterbury property (Ex. 23) in 1937. The remainder of the 30 acres continued to be undeveloped until 1954 when Arthur Olson Associates, Inc. had the 31-lot subdivision approved by the Darien Plan Commission, now known as Briar Brae. The defendants Firgeleski, Chan, Myers and Cronin are Lots 6, 5, 4 and 1 of that subdivision. As mentioned earlier, none of their properties are subject to the restriction or are expressly given any rights under it. From the court's view of the neighborhood in the presence of counsel it appears that each of the lots shown on Map 2435 is improved with a single-family dwelling. That leaves the plaintiffs and the defendant Martin. Martin's lot is part of a different subdivision from Briar Brae, namely, " Subdivision of Property of Richard L. and Nina H. Webb approved by the Darien Planning & Zoning Commission in 1971." (Map 3614, Ex. 12.) Martin's lot is Lot 3 and consists of .75 acres. Thus, all of the defendants' properties are approximately the same size as the lot which the plaintiffs purpose to spin off from their land or in Martin's case, slightly larger and in Cronin's case, slightly smaller. Exhibit 20 shows that the immediate neighborhood abutting the plaintiffs' property on the east (Briar Brae) is now fully developed into predominantly one-half-acre lots. From Ex. 17 and the neighborhood view by the court, it can be seen that these lots have been improved with single-family residences. These homes have been in existence for many years and by their very nature and purpose are intended to remain permanently in their present locations and on the same size lots. Additionally, the plaintiffs' property along with Martin and Cronin front on State route 106 (Hoyt Street) which is an access highway to Merritt Parkway entrances and exits, both north and southbound.
If the restriction runs with the land and if arguedo, it was intended to benefit Briar Brae it falls within the third class which is known as the retained land theory. Shippan Point Association, Inc. v. McManus, 34 Conn.App. 209, 213, 641 A.2d 144 (1998). While the parties seem to agree that the restriction is in gross to Crandall as committee, the court has assumed for the purpose of this analysis that the restriction runs with the land and is not in gross. Therefore, applying the Lomas & Nettleton test above, the court is persuaded that the test has been amply satisfied because it is manifest that the purpose of the restriction has been permanently frustrated because the very land which it was intended to benefit has itself been subdivided into numerous building lots each of which is free of any such restriction and which is approximately the same size as the lot which the plaintiff seeks to create. Moreover, in the case of Martin whose lot is nominally similarly restricted as described above, that lot has been in flagrant violation of the restriction for many years. The present case is similar in facts to Shippan Point Association, Inc. v. McManus, supra where twelve of the twenty-five lots which compromised the dominant estate were developed in contravention of the restrictive covenant. In the present case the number of lots in contravention is 34 out of 35.
A well recognized grounds for nullifying a restriction on this basis is repeated violations of the restriction without effective action to enforce. Cappo v. Suda, 126 Conn.App. at 9, supra .
The Martin property (Lot 3, Map 3614, Ex. 12) is the southerly portion of the land shown on Map 1017 (Ex. 23) which was conveyed by deed from Shepherd to Webb in 1956 (Ex. 6). The entire parcel of 2.11± acres was made subject to the very same restriction. Therefore, if this parcel was subject to the restriction then the 2.11-acre parcel conveyed was limited to the existing residence shown on Map 1017. Some time after 1956, houses were built on both lots 1 and 3. Finally, when Martin's house was built, that portion of part (2) of the restriction which prohibits the erection of a building within 25 feet of the southerly property line applied not to the property as a three-lot subdivision but rather to the property as a single parcel. Consequently, when part (1) of the restriction was violated after 1956 by building homes on lots 1 and 3 the purpose of the 25-foot prohibition became meaningless not only by the three-lot subdivision but because the only property that could possibly benefit from it is the plaintiffs' because they adjoin on the south and they seek by this action to avoid it.
The court also notes from the evidence that the plaintiffs' property itself stands in violation of the restriction in the following ways:
1. In 1959 a 22x23 foot structure was built for a two-car garage. (No plan approval.)
2. In 2004 a 12x18 foot shed was added 18 feet from the southerly border of the lot. (No plan approval, violation of southerly setback.)
3. In 2004 a major expansion was done to the main house, of over 2, 500 square feet. (No plan approval.)
4. Perimeter fence. (No plan approval.)
The second part of the restriction which the plaintiffs attack is part (3) which requires approval of plans for any building or structure. The only evidence of any approval of plans by anyone is found in Ex. 24 which applies to the plaintiffs' property. But such an approval creates an illusionary impression because at the time the approval was issued in 1956, Crandall was no longer the committee. This is evidenced by the fact that Ex. 26 in 1947 refers to Richard W. Fitch as committee to sell the Waterbury real estate and Ex. 35 is evidence that Crandall resigned as committee in 1945. So, the approval evidenced in Ex. 24 is a sham and of no legal force and effect. Nevertheless, it is significant that Crandall believed that he possessed the right to approve plans as opposed to the actual successors in title to the Waterbury property which by 1950 had been sold in its entirety. See Ex. Q. There is no evidence of approval of plans by anyone or for anyone except by Crandall on this isolated occasion. Crandall's clear usurpation of power years after he no longer had any power, coupled with a total absence of evidence of any other approval, make part 3 ludicrous at this point in time. This is especially so if the plaintiffs were required to obtain plan approvals from all 35 lot owners. In Pulver v. Mascolo, 155 Conn. 644, 650-52, 237 A.2d 97 (1967) our Supreme Court addressed a similar restriction. That court held that even with words of succession such as " binding on the heirs and assigns of the grantee" that " does not in and of itself cause the burden to run with the land if the nature of the restriction is not one which could run with the land." The court quoted from Patrone v. Falcone, 345 Mass. 659, 189 N.E.2d 228 (Mass. 1963) as follows: " There, the common grantor imposed a restrictive covenant on each of the numerous lots shown on a recorded development plan of a tract of land in a residential area. The covenant provided; Said land is conveyed subject to the following restrictions . . .: " No building shall be erected, placed, or maintained thereon other than one detached dwelling house for the occupancy of one family, and appurtenant buildings. The design and location on the premises of any dwelling, buildings, fence, sign or other structure or device appurtenant thereto must be approved by the grantor, his heirs or assigns before construction thereof is begun ." (Emphasis added.) The plaintiffs sought to restrain the defendant from constructing a two-car garage on his property. The defendant's deed made specific reference to the restrictions and provided that the " restrictions are imposed for the benefit of the other lot owners in said development." The original grantor had sold all of the lots before the action arose. The Massachusetts court reversed the conclusion of the trial court that this restriction ran with the land so as to be enforceable by one grantee of the common grantor against another and stated: " [T]he restriction which the plaintiffs seek to enforce cannot fairly be construed as intended to be appurtenant to the plaintiffs' land. We are of the opinion that both the language of the restriction and reason compel the conclusion that the right of approval was intended to be exercised only by the grantor, his heirs, or assigns. A contrary construction would place an extremely onerous burden on each lot owner in the development, for no grantee could build without the approval, as to location and design, of every other grantee; if one grantee has a right of approval, all have it. It seems to us highly unlikely that the common grantor could have intended by implication to give this power of approval, which involves matters of personal taste and discretion, to each of the grantees in the development. Unless all the other lot owners were in agreement on the matter of location and design--which would be highly unlikely--a lot owner would be unable to erect a structure on his land." (Citations omitted.)
The plaintiff further claims that if the restriction ever applied to their property, it has been abandoned. " To establish an abandonment of an easement by the acts of the owner of the dominant tract, it is said that his 'acts must be of so decisive and conclusive a character as to indicate and prove his intent to abandon the easement.' Hayford v. Spokesfield, 100 Mass. 491, 494. 'The abandonment of an easement is a matter of intention on the part of the' owner of the dominant tract." Jones on Easements (Ed. 1898) § 849. Chief Justice Shaw, in Dyer v. Sanford, 50 Mass. (9 Metc.) 395, 402, 9 Metc. 395, states that, to establish an abandonment of an easement, " the proof must go to this extent: First, that the acts relied on were voluntarily done by the owner of the dominant tenement, or by his express authority; secondly, that such party was the owner of the inheritance, and had authority to bind the estate by his grant or release; and thirdly, that the acts are of so decisive and conclusive a character as to indicate and prove his intent to abandon the easement." See also 9 R.C.L.P. 812, § 68." American Brass Co. v. Serra, 104 Conn. 139, 148, 132 A. 565 (1906).
So, if the right of approval runs with the land it has been abandoned by the failure to exercise it with respect to any of the other thirty-four houses which are built on Maps 2435 and 3614 over a period of seventy-four years (1941 to date). If it has not been abandoned then under the reasoning of the court in Pulver v. Mascolo, supra, then this part of the restriction cannot fairly be construed as intended to be appurtenant to any of the defendants' property. The defendants have raised four special defenses. The court believes that these defenses do not require analysis or discussion as each of them has been rejected implicitly by the court's foregoing analysis. Based on the foregoing, the court hereby declares that as to these defendants so much of part (1) of the restriction which limits the plaintiffs' lot to the erection thereon of one dwelling house, so much of part (2) as prohibits the erection of any building with twenty-five (25) feet of the southerly line of said premises and all of part (3) are hereby declared to be unenforceable by the defendants.
The fifth special defense was withdrawn on October 14, 2015.
" Violation by a property owner of one restriction [will not] estop him to compel observance of another restriction beneficial to his property." Grady v. Schmitz, 16 Conn.App. at 299, supra . Indeed, the defendants' reply brief agrees that part (3) is unenforceable.
Because the court has concluded that the defendants do not benefit from the servitude created by the restriction and further, that the restriction is otherwise unenforceable against the plaintiffs, there is no need to address the plaintiffs' remaining claims.