Opinion
No. FST CV 06-4007607 S.
November 22, 2006.
SUPPLEMENTAL MEMORANDUM OF DECISION
This memorandum of decision addresses the issue of whether the plaintiff has proven that the provisions of certain restrictive covenants require the removal of either of the two residences located on the defendants` property.
This action was brought by the plaintiff in 2005 seeking injunctive relief to enforce the provisions of restrictive covenants applicable to a 31-lot subdivision know as "Overbrook." The action filed after the defendants began construction of second residential structure on their 3+acre lot and listed their original residence and a 1+acre portion of their lot for sale. In her complaint the plaintiff claimed that she was the owner of 2+acre lot also subject to the "Overbrook" restrictions. She claimed that the defendants` activities violated the provisions of the restrictive covenants in a number of ways. The court heard the parties` testimony and other evidence over four days of trial from March 1, 2006 to March 8, 2006. The facts found by the court are set forth in detail in the court`s memorandum of decision dated May 24, 2006. In summary, the court found that:
1. Both the plaintiff`s property and the defendants` property were subject to the "Overbrook" restrictions which were substantially uniform.
2. The plaintiff had standing to enforce the restrictions.
3. The restrictions were viable.
4. Changed circumstances were insufficient to negate the validity of the restrictions.CT Page 22382
5. Laches did not bar the plaintiff`s action to enforce the restrictions.
6. Paragraph 5 of the restrictions requiring prior approval of construction plans was personal to the original grantor and could not be enforced by plaintiff.
7. Paragraph 2 of the restrictions prevented the defendants from subdividing their property for purposes of sale.
8. The plaintiff had not shown that the defendants had yet used any structure on their property in a manner which would violate paragraph 1 of the restrictions.
The court granted the plaintiff an injunction preventing the defendants from subdividing their property for purposes of sale and retained jurisdiction for a period of one year to determine any issues which might arise out of the use of any structure on the defendant`s property.
On June 5, 2006 the defendants, Ralph F. Arcamone, Jr. and Claire Ann Clark, filed a motion to reargue which the court granted in part. The court permitted the defendants to be heard on their claim that the evidence produced at trial was sufficient to permit the court to determine the permissible uses of the structures on their property under the provisions of paragraph 1 of the restrictive covenants. The parties were heard on August 1, 2006. On August 4, 2006 the court entered an order finding that the evidence produced at trial was insufficient to permit the court to make such a determination.
On August 11, 2006 the defendants filed a motion for further order and a motion for extension of time to file appeal. In the motion for further order the defendants requested the court to hold a hearing to ". . . consider all pending issues relating to proposed uses of defendants` property and the two dwellings thereon . . ." On August 21, 2006 the parties appeared before the court and presented additional evidence and argument concerning the issues.
The evidence produced at the August 21, 2006 hearing established that the defendants no longer intend to subdivide their property for sale. Instead they plan to rent their original residence (145 West Norwalk Road) and to occupy the new residence, now designated as 143 West Norwalk Road, as their family home. The original residence is a one and a half-story structure built in 1830 and renovated and expanded in the early 1990s. As presently configured the structure has seven rooms including three bedrooms and two bathrooms. The records of the Norwalk assessor show that the structure has a gross useable floor area of approximately 3,500 square feet. At the time of the hearing, the new residence was nearly completed. When finished it will have a useable floor area of approximately 5,200 square feet.
In its memorandum of decision of May 24, 2006, the court found that both the plaintiff`s property and the defendants` property were subject to substantially uniform restrictions set forth in the "Overbrook" deeds. Those restrictions are not, however, identical. Paragraph 1 of the restrictions as set forth in the plaintiff`s deed and in the deeds conveying 29 of the 31 "Overbook" lots reads as follows:
1. No building shall be erected upon the premises above described except one single family dwelling house; and in addition thereto there may be erected thereon one separate garage and separate buildings for such uses as a greenhouse, gardener`s cottage, a shop for use in connection with said premises but not for commercial use, or other outbuildings suitable for use in connection with and as appurtenant to said dwelling house . . .
The restrictions on the defendant`s property are set forth in a deed dated February 27, 1942, from John Sherman Hoyt ("Hoyt") to William H. Pinckard conveying the 3.14-acre parcel presently owned by the defendants. Paragraph 1 of the restrictions in that deed differs from those in the other "Overbrook" deeds in two significant respects. First, there is a preamble which is absent from the plaintiff`s deed and from the other 29 deeds conveying "Overbrook" lots. That preamble reads as follows:
A house now stands on said Lot and said house may be enlarged and improved but any addition to said house shall be so constructed as not to bring said house or any part thereof nearer than the same now is to said West Norwalk Avenue. Should said building be destroyed or removed, no new building shall be erected on the premises above described except a one family dwelling, nor shall the old building, if improved and enlarged be made into other than a one family dwelling house . . .
The second difference between the paragraph 1 restrictions in the plaintiff`s deed and paragraph 1 in the defendants` deed is in the list of permitted accessory buildings. In common with 28 other "Overbrook" deeds, the plaintiff`s deed expressly permits a separate garage, greenhouse, gardener`s cottage and a shop for use in connection with the premises. However, paragraph 1 of the defendant`s deed also expressly permits the construction of a "guest cottage." The only other "Overbrook" deed expressly permitting a "guest cottage" is the deed to the 3.89-acre lot (Lot Q) presently owned by Catherine Brinekerhoff. That lot is adjacent to the defendants` lot and also fronts on West Norwalk Road. The defendants` lot and the Brinckerhoff lot are the only "Overbrook" lots not having frontage on either Maywood Road or Maywood Court. The defendants` lot and the Brinkerhoff lot are two of the larger "Overbrook" lots, each having in excess of three acres. Most "Overbrook" lots are approximately the size of the plaintiff`s lot which contains 2.12 acres.
The plaintiff claims that the rental of 145 West Norwalk Road violates paragraph 1 of the restrictive covenants and that the residence located at that address must be ordered removed. She supports these claims with an array of arguments. First, the plaintiff argues that the restrictions expressly forbid the use of the residence at 145 West Norwalk Road for any purpose other than as a principal residence. Accordingly, that structure cannot qualify as a permitted accessory building. Second, the plaintiff argues that because the residence at 145 West Norwalk Road is situated on a separate lot for zoning purposes, it cannot be considered accessory to a principal residence located on another lot. Third, the plaintiff argues that the size of the structure at 145 West Norwalk Road precludes it being considered either as a guest cottage or a gardener`s cottage. In support of this claim the plaintiff urges the court to either adopt the size of the guest cottage built on the Brinkerhoff lot, adjacent to the defendants` property, as the upper limit of the permissible size of cottages, or to make an ad hoc determination that the sheer size of the structure at 145 West Norwalk Road prevents it from being considered a cottage of any sort. Fourth and finally, the plaintiff argues that even if the defendants were permitted to use the structure at 145 West Norwalk Road as a cottage, they could only use it to accommodate either guests or household servants such as gardeners. In making these arguments the plaintiff asserts that because the defendants applied to the court to determine whether the rental of 145 West Norwalk Road was permitted under the restrictions, the burden of proof shifted from the plaintiff to the defendants.
On their part the defendants claim that the plaintiff has failed to sustain her burden of showing that the proposed rental of 145 West Norwalk Road would constitute a violation of the "Overbrook" restrictive covenants. In addition, the defendants claim that the plaintiff has failed to demonstrate that she has suffered or will suffer irreparable harm if the defendants should proceed with the proposed rental.
Before discussing the parties` respective claims, the court will consider the issue of burden of proof and the standard for granting injunctive relief if a violation of the restrictions is established. Despite the plaintiff`s assertions to the contrary, the court finds that the plaintiff has the burden of proof with respect to her claims of violations of the restrictions. As the court noted in its memorandum of decision of May 24, 2006, the court did not have sufficient evidence to grant the plaintiff`s application for an injunction requiring the defendant to remove one of the structures on their property. By simply reserving jurisdiction to hear any further applications concerning the use of the structures on defendant`s property, the court could not and did not shift the plaintiff`s burden of proof to the defendants.
If the plaintiff were able to sustain her burden of proof that the defendants` rental of 145 West Norwalk Road violates paragraph 1 of the restrictive covenants, she is not required to show that she has or will sustain irreparable injury. She need only show that the relief requested would not be inequitable. Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977).
The court will consider each of plaintiff`s claims separately. The plaintiff first argues that even if the plaintiffs could otherwise use the original residence as a guest cottage or gardener`s cottage, the express provisions of the restrictions prohibited such uses once that structure had been improved and enlarged. The plaintiff points to the following language in paragraph 1 of the restrictions as set forth in the Pinckard deed: ". . . nor shall the old building, if improved and enlarged be made into other than a one family dwelling house . . ." The plaintiff points out that the evidence in this case establishes that original residence on the defendants` lot was substantially enlarged by the defendants in the early 1990s. The plaintiff claims that such enlargement precludes any use of the residence for a different purpose. The court finds that the plaintiff`s reliance on the above-quoted provision of the restriction in the defendants` deed is misplaced.
The portion of paragraph 1 of the restrictions at issue is not a uniform one imposed on all properties in the "Overbrook" subdivision. A number of "Overbrook" lots had existing structures located on them when they were conveyed to purchasers by John Sherman Hoyt. However, no deed, other than the Pinckard deed purported to limit the use to which those existing structures might be put. To the extent they are uniform, the "Overbrook" restrictions do not place any limitations on the conversion of one permitted structure (whether existing at the time of the deed or erected thereafter) to a different permitted use. The court concludes that the provision of the restrictions limiting the use to which the existing residence on the defendants` property could be put was not part of the uniform set of restrictions, but rather was one which was personal to the common grantor, John Sherman Hoyt. Such restrictions cannot be enforced by the successors in title of other grantees whose properties were not subjected to the same restriction. Pulver v. Mascolo, 155 Conn. 644, 651, 237 A.2d 97 (1967): Gilbert v. Beaver Dam Ass`n. of Stratford, Inc., 85 Conn.App. 663, 679, 858 A.2d 663 (2004).
The plaintiff`s second argument is that the restrictions do not permit the existence of two dwellings on one lot. The plaintiff claims that the new residence was built on a separate lot for zoning purposes. Under Norwalk zoning regulations the old residence is a principal use on its zoning parcel, while the new residence is a principal use on its separate zoning parcel. The plaintiff urges that since both residences are principal uses, the original residence cannot be considered to be appurtenant or accessory to the new residence. This argument overlooks that fact that zoning provisions, unless incorporated, either explicitly or implicitly, by reference are irrelevant to the interpretation and enforcement of the restrictive covenants. In this case there was no evidence as to whether or not zoning regulations were in force in Norwalk in the early 1940s when the restrictions were created or if there was any intent of the grantor, either express or implied, to incorporate the provisions of such regulations into the restrictions he placed upon the lots he was carving out of his Overbrook estate.
In its May 24, 2006 memorandum of decision the court granted the plaintiff`s request for an injunction prohibiting the subdivision of the defendants` lot of purposes of sale. Accordingly, for purposes of enforcement of the restrictions the defendant`s property must be considered to be one parcel or lot and the zoning compliance of the defendants` property or lack thereof is not relevant to the plaintiff`s action which seeks only to enforce restrictive covenants. "The law is well established that restrictive covenants in a deed as to use of property are distinct from the provisions of a zoning law." Whiting v. Seavey, 159 Me 61, 68, 188 A.2d 276 (1963); Johnson v. Guarrino, 22 Conn.Sup. 235, 238, 168 A.2d 171 (1960). Thirdly, the plaintiff argues that the original residence is too large to be considered either a "guest cottage" or a "gardener`s cottage." In its memorandum of decision of May 24, 2006, the court determined that the restrictions on the defendants` property (Plot R) and the adjacent parcel (Plot Q) were unique in that they permitted the construction of a "guest cottage" in addition to other permitted appurtenant structures. The evidence showed that in 1946 a second residence was constructed on plot Q. Over the years either the original residence or the newer one has been rented to tenants while the other residence was occupied by the owners of plot Q. The court concluded that the second residence, containing approximately 1,136 sq. feet of floor area was, most likely, a permitted "guest cottage."
The plaintiff urges that the 1,136 square foot structure on the neighboring property should be accepted by the court as the largest structure which could qualify as a "cottage." The plaintiff has not cited any authority for her contention that a "cottage" must necessarily be a structure of limited size. The term "cottage" does not have any well defined meaning under the law. Courts in other states have used the term in context to describe a variety of structures — "a residential dwelling situated on the same lot as a primary residential dwelling" Dawson v. Zoning Board of Appeals of Southold, 12 A.D.3rd 444, 445, 785 N.Y.S.2d 84, 86 (2004) — "a two story cottage" Petrocelli v. Zoning Board of Appeals of the Village of Kings Point, 281 App.Div.2d 423, 424, 722 N.Y.S.2d 34, 35 (2001) — "[a] residence [to] provide care for up to eight children." St Mary`s Home for Children v. Hays, Providence Superior Court, State of Rhode Island, C.A. No. 97-2720 (October 30, 1997, Rogers, P.J.)
Despite the court`s finding in its May 24, 2006 memorandum of decision as to the size of the Brinckerhoff guest cottage based on the records of the Norwalk tax assessor, the plaintiff insists that the cottage contains only 696 sq. ft.
In four recent tax appeals to the Superior Court cases, three different trial courts have referred to structures of substantial size as "cottages." In Anderson v. Madison, New Haven JD, CV 03 0477257 S, (October 12, 2004, Arnold, J.) the following residences were all described as "cottages" — two stories 1,632 square feet; two stories 2,482 square feet with seven rooms, four bedrooms, three baths, two wood decks. In Neptune, LLC v. Madison, New Haven JD, CV 040378100S, (June 2, 2005, Lopez, J.) the court referred to a 3,022 square foot, 2 1/2-story residence containing ten rooms, five bedrooms and four baths as a "cottage." In Fremantle v. Madison, New Haven JD, CV 03 0478105 S, (July 22, 2005, Lopez, J.) the court described three `cottages" one containing 2,552 square feet in a 2 3/4-story structure containing four bedrooms and three baths, a second containing 1,868 square feet with seven rooms, four bedrooms and two bath, and a third containing 3,131 square feet in 2 1/2-story residence containing nine rooms, six bedrooms and three baths. In Noonan v. Madison, New Haven JD, CV 030477358 S, (July 22, 2005, Hadden, J.T.R.) the court described a "cottage" containing 1,846 square feet of finished living area which did not include a 246 square foot enclosed porch and a 425 square foot deck.
In different contexts, other Superior Courts have described "cottages" of substantial dimensions. For example in NSA Properties, Inc. v. Stamford, Stamford/Norwalk JD CV 94-0144003819-S (March 29, 2005, Lewis, J.T.R.) [ 39 Conn. L. Rptr. 95] the court described a "caretakers cottage" as having a library upstairs which was used for gatherings, study and education.
The court finds that the term "cottage" has no fixed meaning under Connecticut law that precludes structures exceeding a certain size from being considered cottages. The plaintiff has presented no evidence regarding the intention of the parties to the 1942 deed or as to circumstances surrounding them at time of the execution of the deed from which the meaning of the term "cottage" could be inferred. The court also notes that the restrictions place no limitation on the floor area, height or any other dimension of any of the structures which might be built on a Overbrook lot. Accordingly, the court concludes that the plaintiff cannot prevail on her claim that the original residence on the defendants` property violates the restrictive covenants because its size alone precludes its consideration as either a "gardener`s cottage" or a "guest cottage."
Finally the plaintiff argues that even if the court should find that the original residence might be considered a "cottage," the rental of the property to unrelated third parties is inconsistent with the uses permitted under the restrictions. In her fourth argument, the plaintiff also urges that paragraph 1 of the restrictive covenant should be construed as imposing a use restriction on the defendant`s property. She argues that even if the original residence can remain, as a permitted guest cottage or gardener`s cottage, its use should be limited to the housing of guests and/or household servants such as gardeners. She claims that the defendants admitted intention or renting out their original residence is inconsistent with the uses permitted under the terms of paragraph 1 of the restrictions. The court does not agree.
The language of the relevant portion of the restrictions manifests the grantor`s intention to permit, not only a principal residence on each lot, but also a wide variety of separate outbuildings as long as the uses of such outbuildings were residential and not commercial in character. The "Overbrook" restrictions contain no prohibition against rental of all or any portion of the properties subject to the restrictions. The language of paragraph 1 of the restrictions expressly permits:
. . . separate buildings for such uses as a greenhouse, guest cottage, gardener`s cottage, a shop for use in connection with said premises but not for commercial use, or other outbuildings for use in connection with and as appurtenant to said dwelling house . . .
The use of the phrases "such uses as" and "other outbuildings for use in connection with and as appurtenant to said dwelling house" makes it clear that the parties to the deed had no intention of restricting the occupancy of any cottages or other outbuildings which might be erected on the premises to only gardeners and guests. "A restrictive covenant must be narrowly construed and ought not to be extended by implication." Neptune Park Ass`n. v. Steinberg, 138 Conn. 357, 361, 84 A.2d 687 (1951) The plaintiff has not shown that paragraph 1 of the "Overbrook" restrictions imposed any use restriction beyond the prohibition against commercial uses.
A permanent injunction is warranted only when the terms of a restrictive covenant have specified and expressly defined meanings, and, if that is the case, such particularized meanings and definitions will control. Southbury Land Trust v. Andricovich, 59 Conn.App. 785, 789, 757 A.2d 263 (2000); Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977).
The court finds that the plaintiff has not sustained her burden of proving that: the "Overbrook" restrictions: 1) prevent the use of the residence at 145 West Norwalk Road for any purpose other than as the principal residence on the defendant`s property; or 2) limit the size of any building (cottage or otherwise) on the defendant`s property; or 3) impose any use limitation (beyond requiring residential use only) on buildings on the defendants` property.
The court concludes that the plaintiff has not shown that the rental of the residence at 145 West Norwalk Road for residential purposes would violate paragraph 1 of the "Overbrook" restrictions as set forth in the deed to the defendants` property. Accordingly, the court does not need to determine whether, under the circumstances of this case, enforcement of the restrictions by requiring the removal of the original residence would be inequitable.
For the reasons set forth in the court`s memorandum of decision dated May 24, 2006, a final judgment may enter enjoining the defendants from subdividing their property for purposes of sale.
In her brief the plaintiff invites the court to adjudicate a dispute concerning a bill of costs submitted by the plaintiff on June 1, 2006 and the defendants` timely objection thereto. Practice Book § 18-5(a) provides that such disputes shall be heard by the clerk. The provisions of Practice Book § 18-5(b) make it clear that the judicial authority acts only after the clerk has taxed costs and a motion is filed for review. As the record does not reflect that the clerk has taxed costs in this matter, the court declines the plaintiff`s invitation to consider any issues concerning costs at this time.