Opinion
FSTCV146023153S
03-10-2016
Richard S. Jaffe et al. v. David S. Heiss et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFFS' AND DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT (Nos. 121 AND 122)
Hon. Charles T. Lee, J.
Before the court are the plaintiffs' and the defendants' cross-motions for summary judgment. On August 22, 2014, the plaintiffs, Richard and Francoise Jaffe, filed a complaint requesting a judgment declaring a deed restriction preventing division of their property to be invalid and, in any event, unenforceable by the defendants, David and Marion Heiss. On January 28, 2015, the defendants filed a motion to strike, which the court denied. On October 13, 2015, in anticipation of cross motions for summary judgment, the parties filed a stipulation of facts. On October 16, 2015, the plaintiffs filed a motion for summary judgment. The plaintiffs argue that the deed restriction was illegal in its inception and, regardless of the legal status of the deed restriction, that the defendants lack standing to enforce it. In support, the plaintiffs submitted a memorandum of law with accompanying documentary evidence. The defendants responded with a memorandum of law objecting to the plaintiffs' motion and submitted documentary evidence. Also on October 16, 2015, the defendants filed a motion for summary judgment arguing that they are entitled to judgment as a matter of law because the deed restriction is valid and they have standing to enforce it. In support, the defendants submitted a memorandum of law with accompanying documentary evidence. The plaintiffs responded with an objection to the motion. The court heard oral argument on December 14, 2015. Substantively, the two motions for summary judgment are symmetrical in opposition.
The plaintiffs also argue their right to bring this declaratory judgment action. The court disposed of this issue in the plaintiffs' favor at the motion to strike stage and therefore does not address the issue here.
As is more fully discussed below, the plaintiffs' motion for summary judgment is granted and the defendants' motion for summary judgment is denied. There is no genuine issue of material fact and, because the deed restriction is unenforceable as a matter of law, the plaintiffs are entitled to judgment. The court does not reach the issue of the defendants' standing.
BACKGROUND
The undisputed facts are as follows. Prior to February 1993, the Millers owned one parcel of land in Westport, Connecticut, which was not eligible for division under the town zoning regulations then in force. At some point, the Millers decided to divide their parcel of property into two smaller pieces of property and, accordingly, applied to the Westport Zoning Board of Appeals (ZBA) for a variance. The ZBA granted the variance, with a condition that " [a] restriction must be put in the deed stating that neither lot can be subdivided in the future."
The Millers then split their property into two parcels of land: Lot A (2.3713 acres) and Lot B (1.055 acres). On April 29, 1993, the Millers recorded a deed restriction in the chain of title for Lot A (Lot A deed restriction) prohibiting further subdivision of Lot A. Also on April 29, 1993, without recording a deed restriction in the chain of title for Lot B, the Millers conveyed Lot B to the Browns. On July 1, 1993, the Millers conveyed Lot A to the plaintiffs. Twelve days later, on July 13, 1993, the Browns recorded a deed restriction in the chain of title for Lot B (Lot B deed restriction). The deed restrictions are separate documents, do not reference one another, are signed by different parties, and contain different legal descriptions of the relevant property. Otherwise, the restrictions are identical; they rely on the same map and declare that " [t]he undersigned . . . do for themselves, their successors, heirs and assigns, as a permanent restriction to run with the land, hereby declare that said [lot] . . . may not and shall never be further subdivided or resubdivided . . ." In July 2000, the Browns conveyed Lot B to the defendants.
Pursuant to documentary evidence submitted by the parties, for purposes of these motions, the plaintiffs' lot will be referred to as Lot A and the defendants' lot will be referred to as Lot B. These acreage values are provided by the Lot A Declaration of Restriction and the Lot B Declaration of Restriction.
Prior to the defendants purchasing Lot B, in 2000, the plaintiffs applied to the ZBA for a modification of the variance to remove the prohibition on further subdivision. The ZBA denied the plaintiffs' request to modify. The plaintiffs now intend to submit a subdivision application to divide Lot A into additional lots. The defendants intend to enforce the Lot A deed restriction to bar the division. The plaintiffs contend that they would incur considerable costs and expense to prepare and submit a subdivision application without assurance that the defendants cannot enforce the restriction and therefore filed the present request for declaratory judgment.
CONTENTIONS OF THE PARTIES
The parties' motions for summary judgment oppose one another substantively. Accordingly, the arguments contained in the plaintiffs' motion for summary judgment echo the arguments contained in the plaintiffs' opposition to the defendants' motion for summary judgment. Similarly, the arguments which the defendants put forth in their motion for summary judgment reiterate, for the most part, the arguments which they advance in their memorandum in opposition to the plaintiffs' motion for summary judgment.
In the relevant portion of their papers, the plaintiffs argue that the legal status of the ZBA condition is dispositive because the Lot A deed restriction resulted from and was compelled by the condition. In furtherance of this position, they put forth two arguments. First, in imposing the condition, the ZBA infringed on the powers of the planning and zoning commission. Second, neither the ZBA nor the planning and zoning commission has the power to enact a blanket prohibition on future subdivision. Furthermore, the plaintiffs argue, " [t]he Town of Westport has opined that its Zoning Board of Appeals was without authority to determine whether [Lot A] and Lot B may be subdivided or resubdivided . . . Accordingly, the Town of Westport correctly declared the condition prohibiting further subdivision 'void ab initio.'" In addition, the plaintiffs contend that neither deed restriction would be required if a subdivision application were filed today because, currently, Lot A and Lot B fully comply with Westport Zoning Regulations; both properties have frontage on a Town of Westport public road and meet acreage requirements and therefore the condition is moot. Finally, the plaintiffs argue that, " because the . . . deed restrictions were compelled by an illegal variance condition imposed by the [ZBA's] attempt to act without statutory authority, " their case implicates strong public policy concerns.
In their filings, the defendants contend that the plaintiffs erroneously argue that the deed restrictions were illegally imposed by the ZBA. This argument is factually inaccurate, the defendants say, because the restrictions were originally proposed by the Millers. In support, the defendants rely on a statement made by the Miller's attorney during the initial ZBA meeting which, according to the defendants, evidences that the deed restrictions were part of the Millers' development plan before it got to the ZBA. The restrictions were proposed by the applicant; the ZBA merely agreed to the restrictions and approved the plan as submitted. Even if the ZBA did impose the condition (to which, the defendants point out, the Millers did not object), the defendants aver that the ZBA had the authority, in its quasi-judicial capacity, to attach a reasonable condition to the grant of a variance. Regardless of the legal status of the ZBA condition, the defendants argue that the deed restrictions were validly created because they were in writing and recorded in the town where the land lies. In addition, they (1) do not constitute an unreasonable restraint on alienation of land, (2) do not unreasonably burden the fundamental constitutional rights of the plaintiffs, (3) are not for an illegal purpose, and (4) are reasonable. Whether the deed restrictions would be required today is irrelevant. As to the condition being void ab intio, the Town of Westport opinion on which the plaintiffs rely is unofficial and has no legal force. Finally, the defendants state that, regardless of whether the condition was legally imposed, because the plaintiffs have lived with the benefit of the restrictive covenant for years, they cannot now attempt to void it unilaterally.
DISCUSSION
A. Standard of Review
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In considering . . . questions [regarding the creation and enforcement of restrictive covenants], [the court] bear[s] in mind that, [i]n construing a deed, a court must consider the language and terms of the instrument as a whole . . . [The] basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in light of the surrounding circumstances." (Internal quotation marks omitted.) Wykeham Rise, LLC v. Federer, 305 Conn. 448, 456-57, 52 A.3d 702 (2012).
B. Validity of the Private Deed Restriction
" As a general rule, a court will [not] lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law . . ." (Emphasis in original; internal quotation marks omitted.) Carriage House I-Enfield Assn. v. Johnston, 160 Conn.App. 226, 246, 124 A.3d 952 (2015). For example, " agreements contrary to public policy . . . are illegal and therefore unenforceable." 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn.App. 377, 389, 820 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003). " [T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case . . ." (Internal quotation marks omitted.) Carriage House I-Enfield Assn. v. Johnston, supra, 246. Restrictive covenants in deeds are ineffective if they are against public policy; Wykeham Rise, LLC v. Federer, supra, 305 Conn. 458, citing Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Lampson Lumber Co. v. Caporale, 140 Conn. 679, 102 A.2d 875 (1954); 12 Havemeyer Place Co., LLC v. Gordon, supra, 388; or, in other words, negate laws that are enacted for the common good; 12 Havemeyer Place Co, LLC v. Gordon, supra, 389.
Zoning is for the common good. 12 Havemeyer Place Co., LLC v. Gordon, supra, 76 Conn.App. 390 (comparing zoning to a site plan, which " is a plan for the proposed use of a particular site . . ."). Zoning laws are meant to " lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements." General Statutes § 8-2.
Although, ordinarily, violation of a law enacted for the common good is a violation of public policy, " [p]arties may bind themselves to a contract that calls on its face for a use of property that violates the zoning laws because, due to the possibility of obtaining a variance, such a bargain is not against public policy or public morals." (Internal quotation marks omitted.) 12 Havemeyer Place Co, LLC v. Gordon, supra, 76 Conn.App. 390-91. Therefore, " [a private contract providing for a use of premises which is prohibited by the zoning law is not necessarily illegal where it appears that an appeals board has the authority to permit a variance." (Internal quotation marks omitted.) Id., 391. In sum, a private agreement that violates a zoning law " is not necessarily void if, reasonably, the prohibition can be made legal through administrative or judicial action." Id., 390.
Zoning laws, in the form of zoning statutes and municipal regulations, both establish and limit a municipality's zoning powers. Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 100, 616 A.2d 793 (1992). In Connecticut, General Statutes § 8-26 gives the planning commission the authority to " approve, modify and approve, or disapprove any subdivision or resubdivision application . . ." Section 53-5.1 of the Westport Zoning and Subdivision Regulations provides the commission with the same three options. " If [a] plan submitted [to the planning commission] conforms to [the] regulations, the council has no discretion or choice but to approve it." (Internal quotation marks omitted.) Moscowitz v. Planning & Zoning Commission, 16 Conn.App. 303, 312, 547 A.2d 569 (1988) (" [T]he [planning and zoning] commission empowered itself to deny any future applications even if the future applications fully complied with the regulations. This it cannot do."). General Statutes § 8-6 empowers the Zoning Board of Appeals with the authority to grant variances. Section 46-3.2 of the Westport Zoning and Subdivision Regulations does the same. " It is undisputed that [a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance . . . Reasonable conditions attached to a variance are those conditions that are in general harmony with the purposes and intent of the zoning regulations." (Citation omitted; emphasis in original; internal quotation marks omitted.) Gay v. Zoning Board of Appeals, 59 Conn.App. 380, 385, 757 A.2d 61. On the other hand, " [i]f conditions attached to the granting of a variance . . . are outside the authority of the zoning board, the action will not be sustained." Id.
Ordinarily, " the recipient of a [favorable zoning decision] that had been granted subject to a condition may [not] accept both the benefits of the [decision] and the condition attached to it, by failing to challenge the condition by way of direct appeal . . . and then, years later, defend against the enforcement of the condition by attacking its validity ab initio." (Citation omitted.) Upjohn Co. v. Zoning Board Of Appeals, supra, 224 Conn. 101-02. In exceptional cases, such as those " in which a previously unchallenged condition [is] so far outside what [can be] regarded as a valid exercise of zoning power that there [cannot be] any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition [will] violate some strong public policy . . . collateral attack on such a condition [is permissible]." Id., 104-05. In other words, " when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. The only relevant exception to this rule is where the administrative action is void." (Internal quotation marks omitted.) Gay v. Zoning Board Of Appeals, supra, 59 Conn.App. 387.
" A condition is void if it requires a zoning entity to deny a future application even if the future application fully complies with zoning . . . or if the zoning entity exercises a power not held by it but by another governmental entity . . ." Id., 386. Who " first [suggests] the imposition of [a condition] is of no significant consequence . . . [For example, an applicant's] power to limit the future use of . . . parcels [is] not a power [the applicant can] transfer to the planning commission. Nor is it a power that the planning commission has authority to possess. In fact, it has been said that a planning commission cannot base its denial of subdivision approval on the existence of a deed restriction if the application otherwise meets the regulations . . . The responsibility of enforcing restrictive covenants in deeds is allocated to neighboring landowners, not to a municipal commission." (Citations omitted.) Moscowitz v. Planning & Zoning Commission, supra, 16 Conn.App. 311-12 n.8. A void condition, regardless of who suggests it, is illegal and of no effect. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 19, 291 A.2d 208 (1971).
ANALYSIS
A. Genuine Issue as to Material Facts
The parties stipulate to the fact that " the Westport Zoning Board of Appeals granted a variance permitting division of the Millers' parcel, with the condition that the lots created as a result of the division not be further divided in the future." Stipulation, paragraph 3. The plaintiffs assert that the Millers imposed the deed restriction as a result of the ZBA condition; the defendants contend that the Millers did so in order to receive ZBA approval, but did so willingly. The defendants do not argue that the Millers desired a perpetual restriction and, on their own volition, included the restrictive covenant in the deed. Because the distinction that the defendants point out does not make a difference in the case, these facts are not material. Therefore, this factual dispute does not defeat the plaintiffs' motion for summary judgment. The parties are otherwise in agreement as to the material facts relevant to these motions.
B. Validity of the Private Deed Restriction
The questions to be resolved are whether the private deed restriction violates a regulation which is meant to further the common good and is therefore against public policy; and, if so, whether the prohibition could be made legal through administrative or judicial action.
Although the legal status of the ZBA condition is not directly at issue in this case, the condition catalyzed the Lot A deed restriction and therefore the legal status of the ZBA condition is relevant. The ZBA condition mandated that " [a] restriction must be put in the deed stating that neither lot can be subdivided in the future . . ." By its express terms, the condition forbids all future subdivision regardless of compliance with zoning law. In imposing the condition, the ZBA essentially foreclosed all future subdivision applications. Whereas zoning and subdivision statutes and regulations give the ZBA the power to grant variances, the same laws give the planning commission (not the ZBA) the power to consider and act upon subdivision applications. The condition therefore resulted from the ZBA's unlawful exercise of a power held by the planning commission. This type of perpetually restrictive condition and this type of unauthorized action are not only prohibited, even more, they fall within the category of exceptional cases that may be collaterally attacked after the opportunity for a direct appeal has lapsed. For these reasons, the ZBA imposed condition is void, illegal, and of no effect.
The legal status of the ZBA condition does not fully resolve these motions; it is the impact of the ZBA condition on the deed restriction that is dispositive. The ZBA condition is illegal because it violates zoning law, which is enacted for the common good. Therefore, the private agreement, imposed in furtherance of the illegal condition, calls for a use of property that violates a law enacted for the common good. Accordingly, the private agreement violates public policy. Furthermore, the violation cannot be saved by judicial or administrative action. The restriction would only be legal if imposed by the landowners on their own volition. Although, as is evidenced by the ZBA's denying the plaintiffs request for a modification of the variance to remove the prohibition on further subdivision, the possibility of removing the condition exists, this possibility does not cure the violation. No modification can change the inherent purpose of the Lot A deed restriction. For these reasons, the violation is sufficient to render the restriction illegal as against public policy. Accordingly, because a covenant that violates public interest is ineffective, the lot A deed restriction is invalid and unenforceable.
CONCLUSION
By reason of the foregoing, the plaintiffs' motion for summary judgment is GRANTED. Consequently, the defendants' motion for summary judgment is DENIED.