Opinion
HHDCV126034991
05-24-2017
RPG Windsor, LLC v. PRA Suites at Windsor, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
In this action tried to the court, the plaintiff, RPG Windsor, LLC (" RPG" or the plaintiff), seeks to quiet title with respect to its claim that it has an implied easement as to real property located on 300 Corporate Drive, Windsor, Connecticut (" 300 Corporate Drive" or " property"). In initiating this action, RPG has sued the defendants PRA Suites at Windsor, LLC, Windsor Suites, LLC, Westfield Bank, and Connecticut Light & Power Company, all of whom in response have filed answers, counterclaims and/or cross claims.
I
BACKGROUND
The court finds the following facts by a preponderance of the evidence. RPG purchased the property in April 2011 from Community Realty Investors, Inc. (" CRI"), the successor entity to Connecticut River Community Bank (" CRCB"). The property is one of two parcels (200 and 300 Corporate Drive) situated on one lot, which was originally owned by Windsor International Limited Partnership (" Windsor International") in 2005. In March 2006, Windsor International conveyed the lot to PRA Suites at Windsor, LLC (" PRA Suites").
The plaintiff's claim of implied easement arises from the undisputed fact that Joseph Pacitti, sole owner of PRA Suites, intended to develop 200 Corporate Drive as a hotel and 300 Corporate Drive as a five-story commercial office building. Pursuant to that plan, PRA Suites entered into an agreement with Windsor International to purchase 200 and 300 Corporate Drive in August 2005 for $1.6 million, conditioned upon the Town of Windsor's (" Town") issuance of site plan approvals and special use permits reflecting the anticipated development. Those plans included a designation of extra parking spaces on the 200 Corporate Drive parcel for the office building on 300 Corporate Drive and that 300 Corporate Drive would use the existing driveway on 200 Corporate Drive for access to the abutting highway. With those approvals secured, PRA Suites purchased 200 and 300 Corporate Drive on March 3, 2006. PRA Suites then submitted to the Town a modified site plan, which became the basis for various reports issued by the State Traffic Commission (" STC"). STC, in turn, evaluated the proposed development's impact on safety and traffic and issued certificates of approval. The various STC reports, which were filed in the land records from May 2006 through February 2009 and submitted into evidence, reference the site plan including the proposed configurations for parking and egress relative to both parcels. The last STC report, dated February 2009, extended its certificate for an additional year.
In October 2007, PRA Suites also made arrangements for the defendant Connecticut Light and Power Company (" CL& P") to install electrical facilities for service to 200 and 300 Corporate Drive via conduits which extend underground across both properties. A splice box and " doghouse, " which houses the electrical cables and conduits, are located on 300 Corporate Drive.
On December 7, 2007, PRA Suites conveyed 300 Corporate Drive to PRA at Windsor, LLC (" PRA at Windsor"). Both entities, including PRA Development Management Corporation (" PRA Dev") (collectively " PRA entities"), are enterprises solely owned by Pacitti.
Although PRA Suites received a loan in August 2006 of $10 million from defendant Westfield Bank and ultimately constructed the hotel on 200 Corporate Drive, PRA at Windsor was unsuccessful in its attempts to develop the commercial office space on 300 Corporate Drive. Having received from PRA at Windsor a $1.8 million mortgage on the property in December 2007, CRCB eventually instituted a foreclosure action against PRA at Windsor on April 12, 2010. Although PRA at Windsor successfully secured re-approvals of the modified site plan for an additional five years on October 22, 2010, title to 300 Corporate Drive vested in Community Realty Investors, Inc. (" CRI" the successor entity to CRCB) on January 12, 2011, following a judgment of strict foreclosure on November 22, 2010.
On April 6, 2011, RPG signed a Purchase and Sale agreement with CRI to purchase 300 Corporate Drive for $300,000 and acquired title on April 11, 2011. The " as is" market value of the property on September 29, 2010 was appraised at $900,000. The Purchase and Sale agreement contained a " No Reliance, Independent Investigation" clause which stated, in relevant part, that " [RPG] . . . agrees, acknowledges, and represents that [RPG] is entering into this Agreement and shall perform all of its obligations hereunder and consummate the transaction contemplated by this Agreement solely in reliance on and as a result of [RPG's] own investigation and efforts . . ." In addition, prior to having acquired title, RPG representatives accompanied by legal counsel met with the Town Planner, Eric Barz, who warned the plaintiff's representatives that " they were buying a pig in a poke" to the extent that they had no easements to access and no parking on property which they did not own. The plaintiff's representatives waved off this issue and acknowledged that " those issues are our problem." Notwithstanding these " problem[s], " the plaintiff accepted title via Quit Claim Deed which clearly states: " Said Premises are conveyed without representation or warranty, in their AS IS, WHERE IS AND WITH ALL DEFECTS CONDITION and subject to, without limitation, any and all laws, rules, regulations and ordinances, matters as of record appear, and such state of facts as an accurate survey or personal inspection may reveal." Moreover, the Purchase and Sale agreement acknowledges that " [RPG] has had an opportunity to fully inspect the premises, including but not limited to, the physical condition of the Premises . . . and the Purchase Price has been negotiated to eliminate all claims, whether known or unknown, relating to the quality of the Premises . . ."
II
DISCUSSION
The plaintiff has made the following claims against each of the defendants. In count one and count six, the plaintiff asserts a quiet title claim pursuant to General Statutes § 47-31 as to PRA Suites at Windsor, LLC and Windsor Suites, LLC respectively. In counts four, five and eight, the plaintiff asserts a trespass claim relative to the underground utilities on 300 Corporate Drive against CL& P, PRA Suites at Windsor, LLC and Windsor Suites, LLC. Finally, as to Westfield Bank, the plaintiff asserts a claim in equitable subordination.
Windsor Suites, LLC is the successor entity to PRA Suites at Windsor, LLC and was added as a necessary party by way of the third amended complaint filed on January 29, 2016.
In counts two and seven, the plaintiff claimed a right to private zoning enforcement against PRA Suites at Windsor, LLC and Windsor Suites, LLC, respectively. These claims have been withdrawn.
In response, the defendants have answered the complaint issuing denials as to the core allegations and have also made the following claims. In its counterclaim, Windsor Suites, LLC seeks to quiet title in that it claims that it has an implied easement relative to the underground utilities to the extent that they serve its property on 200 Corporate Boulevard. As to the same issues, CL& P has filed an amended cross claim alleging breach of contract in count one and count two as to PRA Suites, LLC and Windsor Suites, LLC respectively. In their answers to the cross claim, PRA Suites and Windsor Suites have asserted a special defense claiming that CL& P has a utility easement by implication and therefore, has a superior right to the property relative to RPG's assertions of trespass as to CL& P.
A
Quiet Title Claims
" It is well settled that [a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the rules authorized by the easement . . . [T]he benefit of an easement . . . is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . . [E]asements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose . . ." (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 700, 923 A.2d 737 (2007). Easements may be created by, inter alia, express grant, implication, necessity, and prescription. Cheshire Land Trust, LLC v. Casey, 156 Conn.App. 833, 844-45, 115 A.3d 497 (2015).
The parties do not dispute that the determination of an easement by implication is a question of law. For the applicable principles, the parties uniformly cite to the definitive authority of Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630, 636, 806 A.2d 573 (2002). " Where . . . an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a grant or reservation of the right to continue such use . . . Further, in so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the portion granted . . . The reason that absolute necessity is not essential is because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it . . .
" The two principal elements we examine in determining whether an easement by implication has arisen are (1) the intention of the parties, and (2) if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate . . . The intent of the grantor to create an easement may be inferred from an examination of the deed, maps and recorded instruments introduced as evidence . . . A court will recognize the expressed intention of the parties to a deed or other conveyance and construe it to effectuate the intent of the parties . . . In doing so, it always is permissible to consider the circumstances of the parties connected with the transaction . . . Thus, if the meaning of the language contained in a deed or conveyance is not clear, the court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 636-37.
1
Parking and Access Claims
In referring this court to Utay, the plaintiff asks this court to inquire only as to the intention of the parties and whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. Indeed, the court is aware that the analysis in the decisional law regarding easements by implication tends to focus only on those factors. In considering the historical antecedents for that inquiry, however, the case law reveals that analysis tends to be limited to those two factors because the claimed easements were not only manifestly visible and open but also being used by the individuals claiming the easement. In other words, the fact that the claimed easements were visible, open and in use was a given fact and simply not in dispute. See e.g. Rischall v. Bauchmann, 132 Conn. 637, 641-42, 46 A.2d 898 (1946) (easement by implication where in-use concrete walk was only access to street); Sanders v. Dias, 108 Conn.App. 283, 294, 947 A.2d 1026 (2008) (easement premised on court finding that defendant's predecessors always used front portion of plaintiff's driveway for property access); Gemmell v. Lee, 59 Conn.App. 572, 577, 757 A.2d 1171, cert. denied, 254 Conn. 951, 762 A.2d 901 (2000) (easement where plaintiffs made use of subject right-of-way for access to rear of property since 1935).
Thus, the classic examples of implied easements have included some sort of physical structure that was actively used, like a walkway or driveway. " The principle underlying the creation of an easement by implication is that it is so evidently necessary to the reasonable enjoyment of the granted premises, so continuous in its nature, so plain, visible, and open, so manifest from the situation and relation of the two tracts that the law will give effect to the grant according to the presumed intent of the parties." (Internal quotation marks omitted.) Thomas v. Collins, 129 Conn.App. 686, 692, 21 A.3d 518 (2011) (finding easement by implication where access to garage impossible without use of driveway).
Further buttressing these preconditions is the fact that our courts are reluctant to recognize implied easements. " [I]mplied easements are disfavored in Connecticut and are allowed to a very much more limited extent than in many other states . . . This principle cautions against expanding their scope without a compelling basis." (Citation omitted; internal quotation marks omitted.) Cheshire Land Trust, LLC v. Casey, supra, 156 Conn.App. 847. It is difficult to imagine how there can be a compelling basis for an implied easement that is not in use and for which there is no physical manifestation.
For those reasons alone, therefore, the plaintiff's claims are tenuous. In this case, there is no dispute that 300 Corporate Drive is an undeveloped parcel and remained in that state from its initial conveyance from Windsor International through to RPG. In claiming an implied easement to the parking spaces and driveway, the plaintiff suggests that the law should recognize that it has what would essentially be an entitlement to the PRA defendants' vision of how that property was to develop. Moreover, by virtue of site plans that were merely referenced in the STC certificates, that vision therefore runs with the land upon the property's conveyance to subsequent owners.
In plaintiff's brief, it asserts " there is no dispute that the easements at issue are reasonably necessary for the use and enjoyment of RPG's property, as RPG cannot develop the property in accordance with the Modified Site Plan."
As to the PRA defendants, at the time the site plans were developed and approved, they were, of course, more than just a vision. The Town's approval of the site plans were the prerequisite steps required for them to market the property as commercial space as envisioned by Picetti. As to subsequent owners like RPG, however, the site plans merely represent a prior owner's vision of how the property could be used. Those plans in no way, in and of themselves, define or limit how that property could or should be developed by future owners unless and until the proposed development becomes a reality.
Even if, however, the court agreed that its only consideration should be the two-prong inquiry in Utay, this court finds that the plaintiff still cannot meet its burden of proof. With respect to the first inquiry, specifically the intention of the parties as inferred from a review of the deed, maps and recorded instruments, the plaintiff suggests that it is the PRA defendants whose intentions and conveyance are relevant. As the defendants point out, however, the Quit Claim Deed held by RPG was conveyed to them by CRCB. It makes no reference to any easement in favor of 300 Corporate Drive to park or pass on 200 Corporate Drive and in fact, makes clear that RPG accepts title " as is, where is and with all defects condition." Moreover, the conveyance references only the original subdivision map. As the Utay court makes clear, the court does not consider extrinsic sources unless the meaning of the language contained in a deed or conveyance is unclear. Utay v. G.C.S. Realty, LLC, supra, 72 Conn.App. 636.
Effectively conceding this point, the plaintiff states, " [n]o Connecticut court held that the law of implied easements should be limited to cases involving maps referenced in deeds." The plaintiff argues that, just because it relied on other documents, specifically the site plans as referenced in the STCs, that somehow that evidences the intent of the PRA defendants to convey an easement. This court is not persuaded. Even if this court credited that assertion as fact, this claim creates too tenuous a link from the documents filed in the land records, from which this court properly considers intent, to site plans whose purpose exists solely to benefit the PRG defendants in their proposed development of the properties. To consider these documents would be contrary to our courts' clear statement that implied easements are disfavored and would improperly expand the scope of the law governing easements.
Moreover, the PRA defendants lost 300 Corporate Drive in foreclosure. It is significant to this court that the CRCB's chosen appraiser in October 2010, R.F. Hagearty & Associates (appraiser), acknowledged that while the lot was approved for an office building in 2005, and said approvals were set to expire in November 2010, economic and market conditions had declined significantly such that their appraisal needed to take into account a wide variety of potential uses. The appraiser specifically opined that they were not convinced that conditions were " suitable for a speculative office development and ultimately appraised the property at $900,000. The fact that the appraiser for CRCB was skeptical of the property's continued economic viability as office development further undermines the plaintiff's claim, even if it were credible and relevant, that it reasonably relied upon easements that were premised upon the defendants' proposed office development.
Finally, with respect to whether the claimed easements are reasonably necessary for the use and the enjoyment of the estate, this court notes again that this analysis is premised on prior use. As the language in Utay makes clear, when " an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a grant or reservation of the right to continue such use ." (Emphasis added; internal quotation marks omitted.) Utay v. G.C.S. Realty, LLC, supra, 72 Conn.App. 636; D'Amato v. Weiss, 141 Conn. 713, 717-18, 109 A.2d 586 (1954) (same); see also Kenny v. Dwyer, 16 Conn.App. 58, 65, 546 A.2d 937, cert. denied, 209 Conn. 815, 550 A.2d 1084 (1988) (where evidence demonstrated plaintiff never used well, court could not find well necessary for use and normal enjoyment of property); Kelley v. Tomas, 66 Conn.App. 146, 169, n.5, 783 A.2d 1226 (2001) (" an easement by necessity does not require that the parcel have a preexisting use of an apparent servitude at the time of severance . . . whereas an easement by implication requires such an apparent servitude to be existing at the time of severance, and that the use of the apparent servitude be reasonably necessary to the use and enjoyment of the grantee's property" [citation omitted]).
Under these facts, the inability to establish prior use virtually precludes any ability to evaluate whether a claimed easement by implication is reasonably necessary. Moreover, even if it were appropriate as a matter of law to consider whether, for example, the access road was reasonably necessary, the plaintiff has not presented any persuasive evidence that it is unreasonable for it to build its own access road. Conversely, the defendants rightly note the existence of significant frontage on Corporate Drive and Lamberton Road upon which it may create access roads. " [A]n easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement's presence." (Internal quotation marks omitted.) Utay v. G.C.S. Realty, LLC, supra, 72 Conn.App. 638.
For all the above reasons, this court finds that the plaintiff has failed to meet its burden in establishing by a preponderance of the evidence an easement by implication.
2
Utilities Claims
In contrast to the plaintiff's claims with respect to parking and access, the defendant's assertion of an implied easement as to the utilities stands on firmer foundation although on somewhat of a different theory. Although there is no express easement or recorded instrument that suggests an implied easement relative to the underground utilities, there is no dispute that 200 and 300 Corporate Drive were under common ownership, specifically PRA Suites, when the utilities were installed. As such, the defendants claim that an easement by implication may be found pursuant to the unity of title doctrine, even though unity of title, as a requirement for the finding of an easement by implication, has been abandoned. This court agrees.
" Where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which, at the time of the severance, is in use, and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage in substantially the same condition in which it appeared and was used when the grant was made." (Internal quotation marks omitted.) D'Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954). Although, in Bolan v. Avalon Farms Prop. Owners Ass'n, 250 Conn. 135, 136, 735 A.2d 798 (1999), the court abandoned the requirement of a unity of title, the court did not suggest that a unity of title, if the facts support such a finding, was no longer relevant and probative for purposes of finding an easement by implication. Indeed, this court is persuaded that where unity of title existed, as it is here, the relevant analysis is simply whether the easement is reasonably necessary for the fair enjoyment of the dominant property.
In this case, while the utility cables and conduits are underground, the doghouse is above ground and meets the requirement that it is " an apparently permanent and obvious servitude." The fact that the plaintiff did not see fit to visually inspect the grounds prior to receiving title does not make it any less visible and obvious. Moreover, at the time of both the PRA defendant's conveyance of the property to CRCB and the latter's conveyance of the property to RPG, the utilities were in use, and the utilities continue to be in use. Specifically buttressing the defendant's claim that the utilities are reasonably necessary is evidence that that the cost of re-routing electric service would amount to $56,000, while CL& P would incur a cost of $35,000. Moreover, the transition would require ceasing electrical service for a period of time effectively shutting down operations for the hotel.
This court, therefore, concludes that the structures and underground conduits supporting the electrical utilities operate as a permanent servitude on the property which is reasonably necessary for the fair enjoyment of the defendant's property on 200 Corporate Drive. This court thus finds that the defendant PRA Suites has by a preponderance of evidence established that it has an easement by implication as to the utilities on 300 Corporate Drive.
B
Trespass Claims
Accordingly, this court also concludes that the plaintiff cannot prevail on its trespass claims as to the defendants and CL& P. " The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007). In this case, because this court has found for the defendant with respect to its counterclaim that it has an easement by implication relative to the utilities, it cannot find by a preponderance of the evidence that the plaintiff has an exclusive possessory interest to the area subject to the easement, as required for a valid trespass claim. In addition, the plaintiff has not established by a preponderance of the evidence that it has sustained a direct injury as a result of the trespass. Therefore, the plaintiff's trespass claims as to both defendants, PRA Suites and CL& P, fail.
III
CONCLUSION
In conclusion, this court enters 1) judgment for the defendants as to the plaintiff's quiet title claim, finding that the plaintiff has not established by a preponderance of the evidence that it has an easement by implication as to parking and access on the property of 200 Corporate Drive; 2) judgment for the defendant Windsor Suites (aka PRA Suites) as to its counterclaim, finding, that it has established by the preponderance of the evidence that it has an implied easement as to the electrical utilities on 300 Corporate Drive; and 3) judgment for the defendants PRA Suites, Windsor Suites and CL& P as to all trespass claims because, in light of the implied easement as to the electrical utilities, the plaintiff cannot establish a trespass. In light of the above findings, the court further finds as moot the equitable subordination claim against defendant Westfield Bank, as well as CL& P's cross claim against defendant Windsor Suites, LLC (previously PRA Suites at Windsor). Accordingly, they are dismissed.