Opinion
FSTCV136017392S
03-10-2016
17 Kimberly Place, LLC v. Richard Wolfram et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AFTER TRIAL
Hon. Charles T. Lee, J.
This action was commenced on March 1, 2013 by the plaintiff, 17 Kimberly Place, LLC, against Richard Wolfram, Richard Ciappa, Elizabeth Ciappa (collectively the Ciappas), the Havemeyer Park Owners Association, Inc. (Owners Association), and additional property owners, but only Wolfram and the Ciappas remain in the case. The plaintiff, the owner of two adjoining lots in the Havemeyer Park subdivision in Old Greenwich, Connecticut, seeks declaratory judgment that all owners in Havemeyer Park, including the individual defendants and the Owners Association, cannot enforce the restrictive covenants in the owners' deeds against subdivision or new construction. On January 2, 2014, the individual defendants, Wolfram and the Ciappas, filed a counterclaim seeking an injunction to prevent the plaintiff from subdividing its properties and constructing new houses thereupon. The Owners Association is in default and did not appear at trial.
The case was tried before the court on October 7, 2015. The plaintiff filed a posttrial brief on October 21, 2015. The defendants filed a posttrial brief on November 4, 2015. The plaintiff filed a reply brief on November 10, 2015. As more fully set forth below, the court finds that the covenants are enforceable and that plaintiff has failed to meet its burden of showing that the restrictive covenants were abandoned. Moreover, the court finds that the defendants have met their burden for obtaining an injunction. Therefore, the court grants the defendants' injunction to prevent the subdivision of, and additional construction on, the plaintiff's lots.
FINDINGS OF FACT
Upon consideration of the testimony at trial and the exhibits entered into evidence, the court makes the following findings of fact:
In 1946, two developers purchased a 200 acre tract of land, which would eventually become Havemeyer Park, in Old Greenwich, Connecticut. The developers formed the Stamford Building Company Inc. (Stamford Building Co.), which assumed ownership of the Havemeyer Park property. In 1947, the Stamford Building Co. began conveying deeds to individually numbered lots in Havemeyer Park to buyers. Currently, the plaintiff's properties consist of lot 132 and lot 132A. These lots are located at 66 and 68 Halsey Drive, respectively. Lot 132 was conveyed by deed from the Stamford Building Co. to its original owners on October 14, 1950. Lot 132A was conveyed by deed from the Stamford Building Co. to its original owners on April 9, 1951. The plaintiff acquired lots 132 and 132A by quit claim deed on December 28, 2010. Both of the plaintiff's properties abut Wolfram's property. One of the plaintiff's properties, lot 132A, abuts the Ciappas' property. Wolfram's property, lot 131, is located at 64 Halsey Drive and was conveyed by deed from the Stamford Building Co. to its original owners on January 20, 1951. Wolfram acquired lot 131 on April 30, 1997. The Ciappas' property, lot 133, is located at 72 Halsey Drive and was conveyed by deed from the Stamford Building Co. to its original owners on January 11, 1950. The Ciappas acquired lot 133 on February 22, 1974.
For purposes of convenience, the four relevant lots were conveyed from the Stamford Building Co. as follows:
1. The Ciappas' property, lot 133, was conveyed on January 11, 1950.
2. The plaintiff's property, lot 132 was conveyed on October 14, 1950.
3. Wolfram's property, lot 131, was conveyed on January 20, 1951.
4. The plaintiff's property, lot 132A, was conveyed on April 9, 1951.
By a quitclaim deed executed on September 4, 1964, the Stamford Building Co. transferred to the Owners Association " all right . . . claim and demand whatsoever, which . . . the said Releasor has . . . under and by virtue of the covenants . . . contained in the deeds heretofore given by the releasor to the then owners of various lots or tracts of land . . . of Havemeyer Park . . ." The releasor is the Stamford Building Co. The assignee is the Owners Association. The deed further states that " [i]t is intended hereby that all the rights and provisions set forth in the aforesaid covenants and agreements shall vest in the release[e], as the assignee of the releasor."
The deeds to the parties' properties contain substantially identical restrictive covenants. All parties had notice of the covenants before or at the time that they took title to their respective properties. The deeds to lots 131, 132, 132A, and 133 contain the following clauses: " [t]his deed is delivered and accepted subject to the following express covenants . . . which shall run with the land hereby conveyed and be binding upon the Grantees and successors . . . and assigns of the Grantee, and enure to the benefit of the Grantor, its successors and assigns . . ." The grantor is the Stamford Building Co. and the grantee is the original purchaser of each lot.
With respect to the restrictive covenants at issue, paragraph 2 of the restrictive covenants contained in the deeds prohibits the construction or maintenance on a single lot of any " buildings or structures . . . other than one detached private residence for one family only with a garage attached thereto . . ." Paragraph 3 states that the " premises shall not be subdivided for the purpose of sale or other transfer of the same without first securing the written approval of the Grantor, or its successors or assigns." Paragraph 11 states that " the assigns of the Grantor may include an association or corporation formed by the owners of the property upon . . . which may be hereafter organized to carr[y] on . . . the purposes as set forth in the within restrictive covenants and agreements, and in the event such an association or corporation becomes the assignee . . . all of the aforesaid rights and powers as set forth in the within restrictive covenants . . . shall vest in such association or corporation with all power to enforce the same." The covenants further provide the grantor and its assigns with the right of first refusal with regard to a sale in Havemeyer Park and require that each property owner in Havemeyer Park pay a fee to the Stamford Building Co. or its assigns for maintaining community services. The covenants also include restrictions, which may be waived by obtaining approval, relating to, inter alia, the placement of signs in yards, exterior painting, erecting fences, and a height limitation on hedges.
At trial, the plaintiff showed examples of violations of different restrictive covenants in Havemeyer Park. Although prohibited by the restrictive covenants, numerous fences, signs, and hedges taller than five feet currently exist throughout Havemeyer Park without the approval of the Owners Association or the other property owners. The owners in Havemeyer Park do not pay maintenance fees to the Owners Association. Rather community services are provided by the Town of Greenwich.
The plaintiff also demonstrated several construction projects in Havemeyer Park which were commenced without the approval of the Owners Association or the other property owners. Specifically, the Ciappas added a sunroom, attic, and enclosed porch to their residence without seeking approval of the Owners Association or the other property owners. Within the memory of the witnesses at trial, the Owners Association and the individual property owners have not been asked to waive the right of first refusal with regard to any property sale in Havemeyer Park, although many such sales have occurred. The defendants purchased their properties without receiving a waiver of the right of first refusal. The plaintiff also demonstrated three instances where a lot was subdivided, split, or divided without approval from the Owners Association or the other property owners.
CONTENTIONS OF THE PARTIES
At trial, the plaintiff argued that the fair meaning of the collective deed provisions is that when the original grantor, the Stamford Building Co., transferred each of the lots, it reserved to itself the right to enforce the restrictive covenants. Moreover, the plaintiff argues that the Stamford Building Co. reserved the right to assign its enforcement power in the future, and it ultimately assigned its enforcement power exclusively to the Owners Association in 1964. The plaintiff argues that this assignment gave the Owners Association the right to enforce the restrictive covenants, to the exclusion of individual homeowners; therefore, the defendants lack standing to enforce the restrictive covenants. Further, since the Owners Association is in default, it has not asserted its right to enforce the restrictive covenants. The plaintiff additionally argues that, even if the defendants have the right to enforce the covenants, the covenants have been abandoned and are not enforceable. In support of this argument, the plaintiff demonstrated the aforementioned instances where the restrictive covenants have not been enforced in Havemeyer Park. The plaintiff contends that these instances prove that the restrictive covenants have been abandoned and are unenforceable.
Regarding the defendants' counterclaim, the plaintiff argues that, if the court holds that the defendants have standing to enforce the restrictive covenants, then in order to gain approval to deviate from any of the covenants, as allowed by the deeds, a property owner would have to obtain the permission of every other property owner in Havemeyer Park. The plaintiff argues that this would be an undue and inequitable burden to place on a property owner and, therefore, the court should not allow individual property owners to enforce the restrictive covenants.
The defendants argue that the individual homeowners in Havemeyer Park have standing to enforce the restrictive covenants because the neighborhood was built under a general plan for development and, therefore, any grantee, including the defendants, has standing to enforce the restrictive covenants against any other grantee. The defendants argue that the right to enforce a restrictive covenant is not exclusive to the Owners Association and is separate from the right to approve a deviation from the covenants, which approval right is held exclusively by the Owner Association. Therefore, a finding that the individual homeowners have the right to enforce the covenants would not require, as the plaintiff alleges, a homeowner to obtain approval from every other homeowner in Havemeyer Park to deviate from any of the covenants.
Further, the defendants argue that the few deviations from the restrictive covenants shown at trial are insufficient to establish that the restrictive covenants have been abandoned. Instead, the defendants argue that the restrictive covenants have largely been upheld and the neighborhood conforms to the original uniform plan. Additionally, defendant Wolfram argues that, because his property abuts lot 132 and was transferred from the grantor after lot 132, he has standing to enforce the restrictive covenants against lot 132 based on the retained land theory. The defendants allege that, if the plaintiff subdivides its properties and constructs two more houses thereupon, the defendants will suffer diminished enjoyment of their property.
DISCUSSION
" [S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). " Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, 829 A.2d 801 (2003).
A. Restrictive Covenants
" 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." (Internal quotation marks omitted.) Contegni v. Payne, 18 Conn.App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989). These categories, which are not exhaustive, " relate to the enforceability by and against strangers to the original deed . . ." Wykeham Rise, LLC v. Federer, 305 Conn. 448, 459, 52 A.3d 702 (2012). Both the second class, uniform plans of development, and the third class, the retained land theory, are relevant to this decision.
1. The Retained Land Theory
" 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 expressed therein, read in light of the circumstances attending the transaction and the object of the grant . . . If the covenant is for the benefit of the retained land, it runs with the land and may be enforced by the successor in title to the retained land against the successor in title to the conveyed land, on the principle which prevents one with notice of the just rights of others from defeating those rights." (Citation omitted; internal quotation marks omitted.) Contegni v. Payne, supra, 18 Conn.App. 61.
In determining whether the covenant was for the benefit of the retained land, the Appellate Court has held that the " the covenant must be viewed as presumptively . . . for the benefit and protection of [the] adjoining land which [the developer] retain[ed]." Id., 63-64. The Appellate Court found that restrictive covenants were for the benefit of the retained land when " the language of the deed explicitly states that the covenants are to run with the land and be binding on the grantee's successor and her assigns and will be enforceable by the grantor and its assigns." Id., 64.
" A reservation in a covenant will be interpreted as appurtenant if, from the surrounding circumstances and other relevant provisions in the deed, the parties intended it to run with the land." Castonguay v. Plourde, 46 Conn.App. 251, 258, 699 A.2d 226, cert denied, 243 Conn. 931, 701 A.2d 660 (1997). " [W]here a restrictive covenant contains words of succession . . . a presumption is created that the parties intended the restrictive covenant to run with the land." (Internal quotation marks omitted.) Id.
2. Uniform Plan of Development
As to the second class of restrictive covenants, although there are situations in which a uniform development plan is abundantly clear, in other, less obvious situations, a " uniform plan of development must be divined from the language of the covenants inserted in the deeds of various owners of lots . . . and it is necessary to determine the intent of the owner in creating the restrictions upon any lot to make the benefit of them available . . . to the owners of the other lots in the tract. The intent of the grantor must be determined by reading the deeds in light of the surrounding circumstances attending the transactions . . . The meaning and effect of the [restrictions] 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 . . ." (Citation omitted; internal quotation marks omitted.) Contegni v. Payne, supra, 18 Conn.App. 52.
" Restrictive covenants should be enforced when they are reflective of a common plan of development" DaSilva v. Barone, 83 Conn.App. 365, 372, 849 A.2d 902 (2004). " When making a finding as a matter of law that a common development scheme exists, courts look to four factors: (1) the common grantor's intent to sell all of the subdivided plots; (2) the existence of a map of the subdivision; (3) actual development of the subdivision in accordance with the general scheme; and (4) substantially uniform restrictions contained in the deeds of the subdivided plots." Id., 373. " The factors that help to negate the presence of a development scheme are: (1) the grantor retains unrestricted adjoining land; (2) there is no plot of the entire tract with notice on it of the restrictions; and (3) the common grantor did not impose similar restrictions on other lots." Id., 372.
" With respect to [restrictive] covenant[s], any grantee under a general or uniform development scheme may enforce the restrictions against any other grantee . . . The doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance on the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner who is also subject to the same restriction to violate it." (Citations omitted; internal quotation marks omitted.) Mannweiler v. LaFlamme, 46 Conn.App. 525, 535-36, 700 A.2d 57 (1997).
As held in Pulver v. Mascolo, the right to enforce a restrictive covenant can be separated from the right to approve a deviation from the restrictive covenant. Pulver v. Mascolo, 155 Conn. 644, 237 A.2d 97, (1967). In Pulver, the Supreme Court held that, although under a general development scheme any grantee may enforce restrictions against any other grantee, " the right of prior approval was personal to the [grantor] . . ." Id., 653. The Supreme Court stated 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 the right of approval, all have it." Id., 652. Accordingly, the Court interpreted language comparable to that at issue here to have assigned both the right to enforce and approve to the developer's successor and assign, here the Owner's Association, with the owners retaining only the right to enforce the covenants.
B. Abandonment of the Restrictive Covenants
" Once a common scheme [of development] has been established, it is possible to find that the restrictive covenants are not enforceable because they have been abandoned." Cappo v. Suda, 126 Conn.App. 1, 9, 10 A.3d 560 (2011). " Abandonment is a question of fact . . . It implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances." (Citation omitted.) Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). " [W]hen presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable." (Internal quotation marks omitted.) Cappo v. Suda, supra, 126 Conn.App. 9 (quoting Armstrong v. Leverone, 105 Conn. 464, 136 A. 71 (1927)).
" Violation by a property owner of one restriction [will not] estop him to compel the observance of another restriction beneficial to his property." (Internal quotation marks omitted.) Grady v. Schmitz, 16 Conn.App. 292, 299, 547 A.2d 563, cert denied, 209 Conn. 822, 551 A.2d 755 (1988). A " [c]hange in circumstances, such as use of the benefited property for purposes other than those contemplated by the original covenant, may justify the withholding of equitable relief to enforce a covenant . . . Such a change in circumstances is decided on a case by case basis, and the test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved." (Internal quotation marks omitted.) Shippan Point Assn, Inc. v. McManus, 34 Conn.App. 209, 215, 641 A.2d 144 (1994). In Shippan Point Assn, Inc., the Appellate Court found a change in circumstances sufficient to show abandonment when twelve of the twenty-five original lots in a neighborhood had been subject to either a subdivision or to construction of more than one residential building on an individual lot. Id., 213.
" Despite the Shippan Point court's holding that enforcement of the restrictive covenant at issue would be inequitable, its change of circumstances standard has proven difficult to meet. See, e.g., Discala v. Arcamone, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4007607, (May 24, 2006, Tobin, J.) (examining single family residence restrictive covenant " after the passage of sixty years and allegations of changes in circumstances, " such as " increased traffic" on nearby road and " evidence showing that nearby properties outside of [burdened property] ha[d] been developed" for non-residential purposes, and holding that defendants had not met Shippan Point standard where burdened property had been " developed in strict accordance" with restrictive covenant.); Revonah Woods Property Owners Association., Inc. v. Rubino, Superior Court, judicial district of Stamford, Docket No. CV 03 0197808, (August 23, 2004, Lewis, J.) (finding that plaintiff had " not abandoned its attempt to enforce" restrictive covenant and concluding that " the fact that there are three violations out of 25 homes does not indicate a substantial change of circumstances" warranting denial of plaintiff's application for temporary injunction.); Sturges v. Rissolo, Superior Court, judicial district of Fairfield, Docket No. CV 01 0384369, (September 9, 2003, Gormley, J.T.R.) (rejecting defendant's argument that change of circumstances, namely " the alleged use of other properties in the subdivision for purposes other than strictly residential use, " barred plaintiff from enforcing residential restrictive covenant where argument was based only on defendant's testimony and holding that others' noncompliance with restrictive covenant did not justify defendant's noncompliance.); Murphy v. Kelly, Superior Court, judicial district of Tolland, Docket No. CV 02 0077886 (November 7, 2002, Sferrazza, J.) (33 Conn. L. Rptr. 424) (considering whether defendant could avoid enforcement of restrictive covenant prohibiting vinyl siding on houses within subdivision and rejecting defendant's argument that improvement in quality of vinyl siding constituted substantial change in circumstances.)" Criscenzo v. Chabad-Lubavitch of Shoreline, Inc., Superior Court, judicial district of New Haven, Docket No. CV-08-4032766 (August 13, 2010, Keegan, J.) .
C. Standard for Declaratory Judgment and Injunctive Relief
In the present case, the plaintiff seeks a judgment which would modify the covenants in perpetuity. The Appellate Court articulated the standard for such an action in Grady . " In an action for removal or relaxation of restrictions the issues are not the same as in one seeking to enforce them by enjoining breach thereof, and the judgment is more drastic. 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 . . . It is only where a party seeks by way of affirmative relief to have a restrictive covenant modified or nullified on the basis of a change of circumstance that 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." (Internal quotation marks omitted.) Grady v. Schmitz, supra, 16 Conn.App. 301.
" The standard that governs actions for injunctive relief provides: The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury . . . The [moving party] must allege facts which, if proven, would establish irreparable injury and assume the burden of proving facts which will establish substantial and irreparable damage if they are to prevail in their request for injunctive relief." (Internal quotation marks omitted.) Criscenzo v. Chabad-Lubavitch of Shoreline, Inc., supra, Superior Court, Docket No. CV-08-4032766, at *10 (quoting Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971)).
ANALYSIS
1. Enforcement of the Restrictive Covenants
1. The Retained Land Theory
The defendant Wolfram argues that, based on the retained land theory, he can enforce the restrictive covenants against lot 132. The court finds that Wolfram's property, lot 131, abuts both of the plaintiff's lots, 132 and 132A. The Stamford Building Co. originally owned all three of the aforementioned lots. The Stamford Building Co. transferred lot 132 to the plaintiff's predecessor in October 1950. The Stamford Building Co. retained lot 131 for a period of time before transferring it to Wolfram's predecessor in January 1951. The court finds that Wolfram's lot is retained land in relation to lot 132 because lot 132 abuts Wolfram's property and Wolfram's property was retained for a period after the Stamford Building Co. transferred title to lot 132. Wolfram's lot was transferred to Wolfram's predecessor before lot 132A was transferred to the plaintiff's predecessor therefore, lot 132A does not fit the retained land theory.
In determining whether the retained land theory gives Wolfram standing to enforce the restrictive covenants, the court must examine whether the covenants contained in the deed of lot 132 were made for the benefit of lot 131. The language of the subject deed is similar to the deed in Contegni in that the deed explicitly states that the covenants are to run with the land and be binding on the grantee's successors and assigns and will be enforceable by the grantor and its assigns. Based on language nearly identical to the deed in Contegni, the court finds that the restrictive covenants in the plaintiff's deed inure to the benefit of Wolfram's lot. The court finds that defendant Wolfram has the right to enforce the restrictive covenants against lot 132 based on the retained land theory. This finding is consistent with the court's previous decision on the plaintiff's motion and the defendants' cross motion for summary judgment from October 18, 2013. (No. 154, Karazin J.) However, the retained land theory does not entitle Wolfram to enforce the covenants on lot 1 32A because it was conveyed by the Stamford Building Co. after lot 131.
2. Uniform Plan of Development
With Wolfram's right to enforce as to lot 132 established, the court now analyzes whether Wolfram has standing to enforce the restrictive covenants against lot 132A and the Ciappas have standing to enforce the restrictive covenants against lots 132 and 1 32A based on a uniform plan of development. The court finds that Havemeyer Park was developed with uniform covenants contained in deeds executed by a common grantor, the Stamford Building Co., which initially divided the property into lots under a uniform plan of development. This finding is based on the four factors stated in DaSilva, which are all present in this case. Specifically, (1) the Stamford Building Co. sold all of the subdivided lots, (2) there is a map of the subdivision, (3) the subdivision was actually developed in accordance with this general scheme, and (4) substantially uniform restrictions are contained in the deeds of the subdivided lots. This development plan created the equitable presumption that each purchaser paid a premium for the property in reliance upon the uniform plan of development being carried out. Accordingly, the court finds that a uniform plan of development yielded the development of Havemeyer Park.
As stated in Mannweiler, any grantee under a uniform plan may enforce the restrictions against any other grantee. The restrictive covenants contain words of succession and, therefore, presumptively run with the land. The parties' predecessors took title from Stamford Building Co. in 1950 and 1951 and, with that title, obtained the right to enforce the restrictive covenants. The right to enforce these covenants continues to run with the land and gives the current property owners the right to enforce the restrictive covenants against any other grantee. The fact that, in 1964, the Stamford Building Co. assigned the right of approval and enforcement to the Owners Association does not remove the property owners' right to enforce because this right was already assigned to the parties' predecessors before the 1964 assignment to the Owners Association by the Stamford Building Co. The court finds that the defendants have standing to enforce the restrictive covenants based on the uniform plan for development.
B. Abandonment of the Restrictive Covenants
With the defendants' standing established, the court now must analyze whether the covenants have been abandoned. At trial, the plaintiff showed examples where several restrictive covenants were violated. Although some of these breaches seem relatively minor, such as a hedge that is over five feet tall, others are more substantial. Nevertheless, as stated in Grady, the violation of one restriction does not estop a homeowner from compelling the observance of another restriction beneficial to his property. The violation of the restrictive covenants, such as the Ciappas' construction, does not sufficiently establish that the covenants against subdivision and construction have been abandoned.
The court finds that three known subdivisions or lot splits in a neighborhood of over 350 residences does not sufficiently demonstrate abandonment. These instances are dwarfed in comparison to the number of residences that comply with the restrictive covenant. In Shippan Point Assn, Inc., upon which the plaintiff's argument relies, twelve of the twenty-five lots were subdivided. The facts of this case do not approach such a dramatic percentage. Further, although the plaintiff demonstrated numerous breaches of different restrictive covenants, the plaintiff has not shown that these breaches amount to such a change in circumstances that the enforcement of the covenants is inequitable. Instead, from the evidence presented at trial, Havemeyer Park continues to conform substantially to the original development plan. Therefore, the court finds that the restrictive covenants have not been abandoned and are enforceable.
This conclusion is supported by the differing standards between granting a declaratory judgment as opposed to an injunction. As articulated in Grady, a declaratory judgment would affect the covenants in perpetuity. The plaintiff has failed to meet its burden of showing that the purpose of the covenants has been permanently frustrated and that the change in circumstances of the neighborhood is so great as to defeat the object of the covenants. Instead, the evidence at trial showed that a large majority of the over 350 residences in Havemeyer Park comply with the restrictive covenants.
Further, the plaintiff has failed to show that finding that the defendants have the right to enforce the restrictive covenants would require that, in the future, a property owner would need to obtain approval from all of the owners in Havemeyer Park to deviate from the restrictive covenants. This contention is not supported by the case law. As stated in Pulver, the right to approve deviations from the restrictive covenants remains with the grantor or its assigns. Requiring each owner to obtain permission from every other owner to deviate from the covenants would be unduly burdensome and amount to an impractical construction of the 1964 quitclaim. The court finds that, although the individual defendants retain the right to enforce, the Stamford Building Co. assigned the right to approve deviations to the Owners Association in 1964 to the exclusion of the individual property owners.
The defendants have met their burden to obtain an injunction. The plaintiff does not contest that the defendants would suffer irreparable harm through the diminished enjoyment of their property if the court were to determine that the restrictive covenants were unenforceable and allow the plaintiff to subdivide and develop its properties abutting the defendants' land.
CONCLUSION
By reason of the forgoing, the court finds that the plaintiff has not satisfied the burden of proof at trial and is not entitled to a declaratory judgment. Further, the court finds that the defendants Wolfram and the Ciappas have satisfied the burden of proof for their counterclaim and are entitled to an injunction to prevent the plaintiff from subdividing either of its two properties or constructing additional houses thereupon.