Opinion
No. CV 03 0826885 S
September 30, 2003
MEMORANDUM OF DECISION
This matter, in which the plaintiffs seek injunctive relief, was tried to the court on September 5, 2003. After consideration of the evidence and the arguments presented by the parties, and for the reasons set forth below, the court finds the issues for the defendants.
I. Background
In their verified complaint, dated July 10, 2003, count one, the plaintiffs, David Gallo and Libby Gallo (hereinafter, the Gallos or the plaintiffs), allege that they own property, located at 21 Old Village Lane, and that the defendants James C. Parke and Lana O. Parke (the Parkes) own real property located at 19 Old Village Lane, in Unionville, Connecticut. The Gallos also allege that both properties are subject to a certain Declaration of Restrictions and Covenants with Amendment. See Declaration Of Covenants And Restrictions (as amended), Plaintiffs' Exh. 9 (Declaration). The plaintiffs contend that the Parkes "have located and are building a large, two-story addition on their property in violation of the terms of said Declaration." See Verified Complaint, count one, ¶ 4. The Gallos claim that they will suffer permanent damage and irreparable harm from the Parkes' continued construction and/or completion of the construction.
For ease of reference, David Gallo will be referred to as "Gallo."
For ease of reference, James C. Parke will be referred to as "Parke."
In count two, the Gallos allege that the defendant Coppermine Village Association (Association) approved the location and design of the building on the Parkes' property in violation of the Declaration. The plaintiffs seek a permanent injunction, enjoining the defendants from building on the Parkes' property in violation of the Declaration.
The court finds the following facts and credits the following evidence, except as noted. Before this action commenced, the plans for the Parkes' addition were approved by the Association's covenants committee, and, thereafter, after Gallo objected, by the Association's board of directors. This action then ensued. At the time of trial, a CT Page 10878-bw substantial portion of the addition had been completed.
At the trial, the parties presented testimony and documentary evidence, including photographs. The Gallos' home is situated at the end of a "pod" road or cul de sac on Old Village Lane, next to the Parkes' house. The front of the Gallos' home looks toward the side of the Parkes' addition. Prior to the commencement of construction of the addition, the Gallos' home looked toward the then-existing side of the Parkes' house. The Gallos' central concerns revolve around the size of the Parkes' two-story addition to their home. The addition adds about 1, 300 square feet to the Parkes' home, resulting in a total of approximately 3, 400 square feet. The addition lengthens the Parkes' home, on the side which faces the front of the Gallos' home, by about twenty-eight feet to a total length of some seventy-eight feet.
In their memorandum of law, page 4, the plaintiffs describe Coppermine Village, which consists of 77 houses, as being a neighborhood of "modest" homes. Gallo testified that he purchased his home there over five years ago due, in part, to the privacy it offered.
In his testimony, Gallo complained that the Parkes' two-story addition "looms" over his home, "boxes" it in, and reduces his enjoyment of his home. He claims that the addition obscures the view from his house, including the view from his house to the pod road. The Gallos' home does not front on the pod road. According to the plaintiffs, the addition "is extremely large relative to the existing home." See plaintiffs' post-trial memorandum, pp. 8-9. The plaintiffs also complain that the addition's design includes two dormers on the roof and a large, roofed front porch.
Parke testified that he decided to go ahead with the construction of the addition after being served with the Gallos' complaint. This decision was reached based on the following: that the Association had approved the proposed addition; that the Town of Farmington, of which Unionville is a part, had issued a permit for the construction; that the Parkes had a contractual obligation with their contractor to proceed with the project; and, in the Parkes' view, they were acting within their rights. Parke testified that there were other places in Coppermine Village at which the homes were similarly situated to the juxtaposition of his and the Gallos' houses.
Mary Shea, a resident of the Coppermine Village for approximately fourteen years, and a current member of the Association's covenants committee, also testified. She noted that the three members of the committee unanimously approved the Parkes' proposed addition, finding CT Page 10878-bx that it was in harmony with the neighborhood. Donald Schmidt, an eighteen-year resident of Coppermine Village, and a current member of the Association's board of directors, testified that, after receiving the Gallos' objection to the Parkes' plan, the board met separately with the Gallos and with the Parkes, reviewed the plan for the Parkes' addition, and approved it unanimously. In his view, the addition had a similar look to other houses in the Association, in terms of its siding, color, and roofing. According to him, the size of the addition did not take it out of the required harmony of exterior design. Additional references to the facts are set forth below.
The parties submitted post-trial memoranda of law. Also, in the presence of the parties, on September 16, 2003 the court conducted an on-site view of properties located in Coppermine Village.
II. Standard of Review
The issuance of an injunction is "an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances." (Internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982). "[T]he general rule requiring that substantial irreparable injury must threaten before an injunction will issue is subject to an exception. A restrictive covenant may be enforced by injunction without a showing that violation of the covenant will cause harm to the plaintiff, so long as such relief is not inequitable." Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977).
A restrictive covenant may be applicable to lots which are part of "a general development scheme. With respect to this type of covenant, 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." (Internal quotation marks omitted and citations omitted.) Mannweiler v. LaFlamme, 46 Conn. App. 525, 535-36, 700 A.2d 57, cert. denied, 243 Conn. 934, 702 A.2d 641 (1997).
"A restrictive covenant must be narrowly construed and ought not to be extended by implication. Neptune Park Assn. v. Steinberg, 138 Conn. 357, 361, 84 A.2d 687 (1951). Moreover, if the covenant's language is ambiguous, it should be construed against rather than in favor of the CT Page 10878-by covenant. Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942)." 5011 Community Organization v. Harris, 16 Conn. App. 537, 541, 548 A.2d 9 (1988).
"While the words in a restrictive covenant are to be interpreted in their ordinary and popular sense, if any of the words have acquired a particular or special meaning in the particular relationship in which they appear, such particular or special meaning will control." Southbury Land Trust v. Andricovich, 59 Conn. App. 785, 789, 757 A.2d 1263 (2000).
"When 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." Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984). This is so "even though the wrongdoer would thereby suffer great loss." Id.
With respect to the defendants' arguments concerning the applicable standard of review, see discussions below of arbitration and the business judgment rule.
III. Discussion
A. Appurtenant Or Personal
The Parkes contend that the Declaration demonstrates that it was not the intent of the declarant to have the restrictions contained in Article VI, Section 6.1 run with the land and, therefore, be appurtenant. Rather, the Parkes assert that the restrictions are personal and may only be enforced by the Association.
"To determine whether the restrictions contained in the declaration are appurtenant, we must interpret the language of the creating instrument." Castonguay v. Plourde, 46 Conn. App. 251, 256-57, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).
"The meaning and effect of the [restrictive covenant is] 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 . . . The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met." (Internal quotation marks omitted.) Wood v. Amer, 54 Conn. App. 601, 605, 736 A.2d 162 (1999), affirmed, 253 Conn. 514, 755 A.2d 175 (2000).
"A reservation in a covenant will be interpreted as appurtenant if, from the surrounding circumstances and other relevant provisions in the CT Page 10878-cz deed, the parties intended it to run with the land." Castonguay v. Plourde, supra, 46 Conn. App. 258. Factors which reflect an intent that the restrictions are appurtenant include the use of words of succession, see id., and whether "the restriction enhances and will continue to enhance the value of the dominant estate, rather than merely conveniencing the grantor." See id., 259. "If the easement is in its nature an appropriate and useful adjunct to the land conveyed, with nothing to show that the parties intended it to be a mere personal right, then it is an easement appurtenant." Id., 260.
The court has reviewed the Declaration and finds that the declarant intended the covenants contained in Section 6.1 to be appurtenant, not personal. The Declaration (as amended) provides, in Article VI, Section 6.1, at pages 2-3 of the Amendment, in pertinent part, that
No building, barn, shed, swimming pool, pavement, fence, wall or other structure or improvement of whatever nature shall be erected upon the Property without the prior written consent of the Board of Directors pursuant to the Declaration. No Owner shall make any exterior addition, change, or alteration to the Property without the prior written consent of the Board of Directors pursuant to the Declaration. No landscaping of whatever nature and involving the removal of trees shall be undertaken until the plans and specifications showing the nature, kind, shape, height, materials, color and location of the proposed improvements or landscaping shall have been submitted and approved in writing as to harmony of external design and location in relation to the building views from any road and the Common Property and its effects on Owners by the Board of Directors of the Association or the Board of Directors acting in the capacity of a Covenants Committee or by a Covenants Committee, if established.
The Declaration, Section 1.1(h), at page 2, defines the "Common Property" as "All Portions of the Property except the Lots, including common easements over the Lots, pipes, ducts, wires, conduits and other facilities furnishing utility services to more than one Lot or to a Lot and Common Property, excluding any Lot acquired by the Association or its designee."
This provision also states, "[a]ny fabricated item extending above the surface of the earth and visible from the Common Property or another Lot shall be considered a structural addition subject to this provision." See Section 6.1, at page 3 of the Amendment. Further, the amendment states, "Harmony of exterior design shall be judged in light of the intent that the homes are a part of a single community of buildings maintaining a unified and unitary aspect." See Section 6.1, at page 3 of the Amendment.
These provisions of the Declaration must be read with other portions thereof which utilize words which recognize the right to enforce the covenants by succeeding lot owners. In the portion entitled, "Background," on the first page, the Declaration states, "NOW, THEREFORE, the Developer declares that the real property . . . is CT Page 10878-ca and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens hereinafter set forth." Article XXIII of the Declaration, page 24, entitled "Enforcement," states, "[e]nforcement of these covenants and restrictions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and against the land to enforce any lien created by these covenants and restrictions; and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter." (Emphasis added.) This Article contemplates the enforcement of the covenants and restrictions by "any Owner" in a proceeding at law or in equity.
There is no dispute here that the property which is the subject to the Declaration includes the individual lots on which the homes in Coppermine Village are located. See Declaration, Exhibit A (description).
The right to enforcement clearly is of value to an individual lot owner. Instead of having to rely solely on the Association to act, a lot owner who is aggrieved by a perceived violation is entitled to seek redress in court.
The court is unpersuaded by the Parkes' argument that language in Article IV, Section 4.1 (pages 6-7) shows an intent to create a non-appurtenant interest in Section 6.1. Section 4.1 discusses owners' rights to the Common Property, and specifically refers to "every Owner's heirs, successors, executors, administrators and assigns . . ." In addition, it provides "a right and easement of enjoyment in and to the Common Property, and such easement shall be appurtenant to, and shall run with, the title to every Lot." Similarly, the Declaration, in Article I, "Definitions," at pages 1-2, defines" Appurtenant Interest" as consisting of the interest in the Common Property and interests in the Association and its assets. This language, which principally concerns the Common Property, does not negate the above-quoted language from the "Background" and "Enforcement" sections. Rather, as noted above, the Declaration is to be interpreted considering all its relevant provisions. Similarly, the fact that the Declaration provides, in Section 6.1, for approval of proposed structural additions by the covenants committee or by the board of directors does not render the "Background" and "Enforcement" provisions meaningless. The fact that committee or board approval is required does not negate the right to enforcement given to each individual lot owner.
B. Harmony of Exterior Design
The Parkes also contend that their addition is not subject to the Declaration's "harmony of exterior design" requirement, claiming that only landscaping, not structural additions, comes under its purview. See CT Page 10878-cb Declaration, Section 6.1, quoted above. They assert that the language of the Declaration is unclear. Review of Section 6.1 in its entirety shows that not to be the case.
The Parkes' argument does not address the sentence of Section 6.1, quoted above, which reads, "[a]ny fabricated item extending above the surface of the earth and visible from the Common Property or another Lot shall be considered a structural addition subject to this provision." "[S]ubject to this provision" clearly is a reference to the "harmony of external design" language which precedes it in the same section.
The court is also unpersuaded by the Parkes' contention that the decisions of the board of directors and the covenants committee should be treated as though they resulted from arbitration, and, therefore, not subject to de novo review. "[A]rbitration is a creature of contract and there must be an express agreement to arbitrate in order for the arbitrators to have authority and the court to have jurisdiction . . . Arbitration . . . is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law . . . [A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed to do so . . . No one can be forced to arbitrate a contract dispute who has not previously agreed to do so . . . Therefore, [t]he authority for arbitration must be derived from the agreement of the parties . . . and the relevant provisions of applicable statutory directives . . ." (Internal quotation marks omitted and citations omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 142-43, 794 A.2d 1008, cert. denied, 261 Conn. 910, 806 A.2d 49 (2002).
While the language of the Declaration, Section 6.1, quoted above, requires approval of a structural addition by the board or the covenants committee, it does not amount to an agreement to arbitrate by a lot owner. No such language is present in Section 6.1. Rather, the "Enforcement" provisions, quoted above, contemplate the commencement of a civil action, such as that which is before the court. The court thus declines to treat the decisions of the board of directors and the covenants committee as arbitration awards.
Likewise, the court finds inapposite the Association's argument for the extension of the "business judgment rule" to this dispute. The Association notes, in its post-trial memorandum of law, page 4, that no Connecticut decision has applied this doctrine to a homeowner's association.
In Connecticut, the "business judgment rule" applies to actions against individual corporate directors and others in connection with business CT Page 10878-cc decisions. See Rosenfield v. Metals Selling Corp., 229 Conn. 771, 785, 643 A.2d 1253 (1994) ("The business judgment rule insulates corporate directors [, officers, and controlling shareholders] from liability for business decisions within the power of the corporation for which the directors [, officers, and controlling shareholders] have exercised due care" (footnotes omitted). While General Statutes §§ 33-756 and 33-1104 provide for general standards for corporate directors, this is not an action against individual corporate directors.
Our Supreme Court has explained the policy reasons behind the rule. "[T]he business judgment doctrine [is] a rule of law that insulates business decisions from most forms of review. Courts recognize that managers have both better information and better incentives than they. The press of market forces . . . will more effectively serve the interests of all participants than will an error-prone judicial process . . . The business judgment rule expresses a sensible policy of judicial noninterference with business decisions made in circumstances free from serious conflicts of interest between management, which makes the decisions, and the corporation's shareholders. Not only do businessmen know more about business than judges do, but competition in the product and labor markets and in the market for corporate control provides sufficient punishment for businessmen who commit more than their share of business mistakes." (Internal quotation marks omitted, citations omitted, and footnote omitted.) Rosenfield v. Metals Selling Corp, supra, 229 Conn. 786-87.
The Association also refers the court to decisions in other states on the applicability of the business judgment rule. For example, see Vacca v. Board of Managers of Primrose Lane Condominium, 251 App.Div.2d 674, 676 N.Y.S.2d 188 (2d Dept. 1998), which cites as authority Levandusky v. One Fifth Avenue Apartment Corp., 75 N.Y.2d 530, 554 N.Y.S.2d 807, 553 N.E.2d 1317 (1990). In Levandusky, the New York Court of Appeals referred to a cooperative or condominium association as a "quasi-government" under which the "proprietary lessees or condominium owners consent to be governed, in certain respects, by decisions of the board." Id., 75 N.Y.2d 536. In view of that consent, the court determined that it ought to utilize the business judgment rule, by analogy, in connection with a board decision. See id., 536-38.
As noted, here, the Declaration expressly reserves to the Association and to lot owners the right to enforce the covenants in a civil action. The Association's argument would limit judicial review to circumstances where there is evidence of fraud, bad faith, self-dealing or other misconduct. See Association's post-trial memorandum, p. 3. In contrast, see Levandusky v. One Fifth Avenue Apartment Corp., supra, 75 N.Y.2d 538 CT Page 10878-cd (limiting judicial review to situations where the board does not act for the purposes of the association, or it acts in bad faith, or it acts beyond the scope of its authority).
The Declaration does not so provide. It does not circumscribe a lot owner's right to court redress to the limited review advocated by the Association. The Declaration thus is not "unambiguous in leaving the determination to the homeowners' association." Riss v. Angel, 131 Wash.2d 612, 629, 934 P.2d 669 (Wash. 1997) (also cited by the Association). Under these circumstances, the business judgment rule is not applicable to the issues before the court.
In Riss v. Angel, supra, 131 Wash.2d 631, the court noted that "[t]he role of the business judgment rule where homeowners' associations is concerned is the subject of ongoing debate." One commentator has argued that the rule is inapplicable since such associations are not engaged in entrepreneurship and do not take risks in the hope of profits, while another asserts that officers and directors of community associations must observe the rule. See id.
While the court finds that the Parkes' addition is subject to the Declaration's "harmony of exterior design" requirement, the plaintiffs have not met their burden to show that the Parkes' addition violates it. The court's decision in this regard is based on the evidence presented at trial and on its on-site visit to Coppermine Village.
Coppermine Village's homes have a wide range of square footages. The smallest home has a square footage of 1748 square feet, while the largest (excluding the Parkes' with the addition) has 2, 950 square feet, a difference of about 1200 square feet. Even in the older portions, on Old Village Lane and on Green Woods Lane, the sizes of the homes vary widely. For example, on Green Woods Lane, the smallest has 1755 square feet and the largest 2874 square feet, a difference of 1119 square feet or about 39 per cent. See Plaintiffs' Exhibit 7.
Almost all of the homes on Old Village Lane, on which the Gallos' and the Parkes' homes are located, have less than 2, 500 square feet of living area. Several homes on Village View Lane, which were built later, are larger in size. See Plaintiffs' Exhibit 7. The designs of the homes throughout the Village vary somewhat but are all variants of colonial, contemporary, and farmhouse styles. The Parkes' home, with the disputed addition, would have the largest square footage in Coppermine Village, by approximately 450 square feet.
The plaintiffs have not proven that the size of the Parkes' addition violates the concept of a "single community of buildings maintaining a unified and unitary aspect." See Declaration, Section 6.1. The homes are not limited to a single size, either in the Declaration or as they have been built.
Photographs of other homes also show that other homes in Coppermine Village have good-sized, roofed porches and dormers on the roof. See Plaintiff's Exhibit 1. The presence of these features in the Parkes' addition also has not been shown to be violative of the "harmony" which is envisioned in the Declaration.
Significantly, the court's on-site view of homes in Coppermine Village, including those of the Gallos and the Parkes, was informative. While there was testimony and photographic evidence at trial about the CT Page 10878-ce impact of the addition on the Gallos' home, including the view from the front of their home, the court's view from the Gallos' home and the court's views of the juxtaposition of other homes in Coppermine Village provided it with first-hand, in-person knowledge of these aspects of the situation. While the Parkes' addition does reduce the view from the front of the Gallos' home, it does not affect the privacy which the Gallos enjoy. The rear of their home still borders on the Common Property and their home remains at the end of the cul de sac. See Plaintiff's Exhibit 2 (Assessor's Map). The five houses on the pod in question were already relatively close together prior to the Parkes' commencement of the construction of their addition.
The court's on-site view showed also that, while each of the houses in the viewed areas has its own unique setting in terms of its proximity to its neighbors, the Gallos' situation is somewhat analogous to that existing elsewhere in Coppermine Village. On Green Woods Lane, the house at 12 Green Woods Lane fronts on the road; at the end of the cul de sac, 16 Green Woods Lane faces the side of 12 Green Woods Lane. The view from the front of 16 Green Woods Lane is somewhat similar to that from the front of the Gallos' home in that the Gallos' home faces the side of the Parkes' addition. If the house at 12 Green Woods Lane were smaller, as the Parkes' house was before the addition, the house at 16 Green Woods Lane would have a better view than it has now. See Plaintiff's Exhibit 2 (Assessor's Map).
As with the other homeowners in Coppermine Village, the Gallos did not purchase a front view which was guaranteed to remain the same over time. The limits of expansion of their neighbors' homes have been prescribed, for instance, by the Town of Farmington's setback requirements. It is undisputed that the Parkes' addition is in compliance with those requirements. The Declaration does not provide additional rights to the Gallos to proscribe their neighbors' development of their property in terms of square footage by limiting them to less than that which is in keeping with the Town's requirements, unless that development violates the harmony of exterior design requirement.
Thus, the facts at issue here markedly differ from those in Castonguay v. Plourde, supra, 46 Conn. App. 254, on which the Gallos heavily rely. Both the language of the declaration at issue and the properties in question are different. There, the declaration provided, "Location of dwelling house, garage and any other buildings or additions to buildings to be erected on any lot shall be subject to written approval of Lornik, Inc., or its successors or assigns, in order to preserve the view of other lot owners." Id. In contrast, as noted above, the Declaration here, Section 6.1, does not specifically refer to preserving the view of CT Page 10878-cf other lot owners. Its language of "harmony of external design and location in relation to the building views from any road and the Common Property, and its effects on Owners . . ." refers specifically to the views from any road and from the Common Property, as opposed to an owner's view from his or her lot. More generally, however, "effects on Owners" would include the "view" as being a part of the overall property acquired by a lot's purchaser. See Harris v. Pease, 135 Conn. 535, 537-38, 66 A.2d 590 (1949).
However, in contrast to the closely situated houses on Old Village Lane, whose views necessarily include their neighbors' homes, "a grand panoramic view" was at issue in Castonguay v. Plourde, supra, 46 Conn. App. 254. No such view is at issue here. As noted, the Common Property is contiguous to the rear of the Gallos' lot. The court's view of the properties showed that the Parkes' addition does not effect the Gallos' rear view of or access to the Common Property or the privacy afforded to them by its presence.
The court notes also the plaintiffs' reference to Davenport v. Wicks, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 97-73453 (June 22, 1998, Walsh, J.). There, a deed restriction referred to "`the view of the owner or owners of the lot' in question . . ." Id. The court found that the defendant was entitled to claim the benefit of the restriction "only as to the view" from the lot of which he owned a part, and not from an adjoining lot to the south. See id. There, as here, the court's visit to the site was "very helpful and plays a large part in this factual determination." Id. See Southbury Land Trust v. Andricovich, supra, 59 Conn. App. 793 n. 9 (whether the proposed construction will obstruct a view or undermine the nature of the property "is a determination best made by the finder of fact"). In contrast to the situation in Davenport v. Wicks, supra, as noted above, the view from the Gallos' home was not "extraordinary" prior to the Parkes' construction of their addition. Their view was limited by the proximity of the side of the Parkes' previously existing home.
The plaintiffs' reference to Murphy v. Kelly, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 0077886 S (November 7, 2002, Sferrazza, J.) ( 33 Conn.L.Rptr. 424), is unavailing. There, the declaration stated, concerning building materials for residences, that "the use of aluminum and vinyl siding is prohibited." Id. Despite this provision, the defendant instructed his builder to install vinyl siding on his residence. Here, there is no contention that the Parkes' addition is being constructed with materials which violate the Declaration.
If the Declaration had intended to limit the size of an addition to a CT Page 10878-cg home in Coppermine Village to less than that afforded by the Town's setback requirements it explicitly could have so provided. The absence of such language from the Declaration is significant. See Southbury Land Trust v. Andricovich, supra, 59 Conn. App. 790-91. While the Declaration provides for a "single community of buildings maintaining a unified and unitary aspect," it does not restrict additions to a maximum size.
The plaintiffs do not contend that either "unified" or "unitary" has a particular or special meaning. These words are to be interpreted using their ordinary and popular sense. See Southbury Land Trust v. Andricovich, supra, 59 Conn. App. 789. In ascertaining such meaning, our Supreme Court has looked to Webster's Third New International Dictionary (Webster's). See Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 412, 429 A.2d 905 (1980). Webster's, at p. 2498, defines "unified" as meaning the past of "unify." In relevant context, "unify" means "to cause to be one: make into a coherent group or whole: give unity to: HARMONIZE . . ." See Webster's, p. 2499. "Unitary" is defined in Webster's, at p. 2500, as meaning "having the character of a unit: not divided or discontinuous . . ." The usage of these terms in the Declaration does not reflect an intent to prescribe a maximum square footage for homes in Coppermine Village.
Here, the court agrees with the Association's covenants committee and its board of directors that the Gallos have not proved that the Parkes' addition violates the Declaration. The court finds, after consideration of the aforementioned facts and circumstances, and, in particular, its on-site visit, that, while the Parkes' addition diminishes the view from the front of the Gallos' home, its impact is not so significant that it rises to the level of a violation of the Declaration. The previously existing view in that direction already was dominated by the Parkes' home. While the view from any home in Coppermine Village is undoubtedly important to its owners, its diminution as a result of the expansion of a neighboring home does not necessarily result in the violation of the concept of "harmony of exterior design." Neither the diminution of view here, nor the other aspects of the Parkes' addition about which the plaintiffs complain, constitute violations of the Declaration.
In view of this finding, the court need not determine whether the balance of the equities favors the Parkes and, therefore, no injunction ought to issue for that reason. See Hartford Electric Light Co. v. Levitz, supra, 173 Conn. 21-22.
CONCLUSION
For the foregoing reasons, judgment may enter for the defendants. It is CT Page 10878-ch so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT