Opinion
HHDCV146052696S
07-28-2016
Town of Manchester v. L& J Manchester II, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
Introduction and Summary of Decision
This action concerns a 17-acre parcel of land in Manchester, now owned by the plaintiff Town of Manchester (town). The 17-acre parcel was first developed by private parties in the 1960s as the Broad Street Parkade, a commercial shopping center. The Broad Street Parkade operated successfully for more than two decades and expanded in 1982 to include a Stop & Shop grocery store. In 1990, however, the Buckland Hills Mall opened nearby, and in 1992, a Super Stop & Shop opened in the Manchester Parkade, a shopping center just north of the Broad Street Parkade. These two events led to the economic failure of the Broad Street Parkade. The buildings were eventually abandoned and became blighted.
The town purchased the 17-acre parcel in 2011 pursuant to a redevelopment plan and subsequently razed the buildings on it. Its plan to redevelop the 17-acre parcel has stalled, however, as a result of its dispute with the defendants, L& J Manchester II, LLC (L& J) and D-1, LLC (D-1), concerning the scope of a 1966 cross easement agreement for parking, access, and subsurface utilities that burden and benefit the 17-acre parcel and the parcels owned by L& J and D-1 respectively. L& J and D-1 contend that the cross easements obligate the town to obtain their written consent as to the mass and placement of any improvements on the 17-acre parcel. L& J further argues that the cross easement agreement benefits not only its parcel that is adjacent to the 17-acre parcel on the west, which is expressly described in the cross easement agreement, but also benefits the contiguous Manchester Parkade, which L& J owns.
The town disagrees as to the defendants' interpretation of the cross easement agreement and further argues that the court should find that the purpose of the cross easements has been frustrated by changed circumstances. It asks this court to determine whether the cross easements should be judicially terminated pursuant to 2 Restatement (Third) Property, Servitudes § 7.10, because of changed circumstances; and if the cross easements are not terminated, to determine their scope.
Having considered the entire record, the court finds that the original express purpose of the cross easement agreement was to facilitate the development of a " commercial unity" described as a " shopping center" on the entire premises described in the agreement. The cross easement agreement was amended in 1982 to limit the " shopping center" to the 17-acre parcel and to continue cross parking rights between the 17-acre parcel and the parcels now owned by the defendants. In light of the circumstances existing at the time of the creation of the cross easements and at the time of the most recent amendment to the cross easement agreement, the court finds that the parties also intended to allow use of the parking areas within the cross easement area by persons having business at the Manchester Parkade.
The general purpose of the cross easement agreement, as amended in 1982, has not been rendered impossible by changed circumstances. Although the Broad Street Parkade has failed, the site is still suitable for commercial development. The cross easement agreement will not be terminated by judicial fiat.
The cross easement agreement and subsequent amendments that were recorded on the Manchester land records incorporated plans for the placement of parking areas. As modified in 1982, the parking areas are those shown on the plan submitted to the Town of Manchester, Connecticut, in connection with the construction of the Stop & Shop supermarket in 1982. The parking areas as developed are identifiable on the cross easement areas despite the demolition of the buildings on the 17-acre parcel. Any changes to the location of those parking areas or to the established subsurface utilities will require the written consent of all parties. Such consent is not required for changes to the premises that do not affect the parking areas, access to the parking areas, or subsurface utilities.
Procedural History
The town commenced this action in July 2014, in two counts. The first count seeks to quiet title to the town's parcel under General Statutes § 47-31. The second count seeks a declaratory judgment under General Statutes § 52-29 to determine the validity and scope of the cross easement. In compliance with Practice Book § 17-56(b), the town gave notice to all persons interested in the subject matter of the complaint.
The defendants answered the complaint, denying that interpretation of the easement is uncertain, and stating, pursuant to General Statutes § 47-31(d), that the defendants have a right to park on and to pass and repass over all of the town's 17-acre parcel, and that the town cannot block their access in any manner. They also assert that, as a result of their interest, they can affect the placement of structures and the density of development on the town's property. The town disputes their statement.
The parties agree that the analysis applicable to the first and second counts is essentially the same. Neither the plaintiff nor the defendants analyzed the counts separately. The court has accordingly analyzed the counts together.
The parties appeared for a court trial on July 21, 2015, when they submitted a stipulation of facts and statement of issues. Richard Meehan, a licensed land surveyor, testified to explain certain maps placed into evidence. The parties submitted numerous exhibits, including maps, deeds, leases, easement agreements, and photographs. At the request of the parties, the court and counsel conducted a view of the property on September 15, 2015. The court heard oral argument on October 14, 2015. On February 10, 2016, the court issued an order for supplemental evidence and briefing. The parties submitted supplemental exhibits and briefs on February 22, 2016.
In reviewing the exhibits and considering the court's own view of the property, the court questioned whether certain stipulated facts were consistent with the primary evidence provided by the exhibits. More specifically, the parties stipulated that the Manchester Parkade, which generally lies to the north of the parcels at issue in this case, had always been operated as a " single parcel" of land with the parcels now owned by the defendants. This initially seemed inconsistent with deeds and maps reflecting the separate ownership and development of the parcels before 1966. On February 24, 2016, the court issued a further order directing the parties to address certain questions. The parties submitted further briefs and a hearing was held on March 17, 2016, to address the court's questions.
After considering the parties' arguments, and after further study of the exhibits, the court concludes that the parcels now owned by L& J and D-1 in the cross easement area have been used as a parking area for the Manchester Parkade since the 1960s.
On March 18, 2016, the parties submitted additional deeds requested by the court. On March 29, 2016, the town submitted a notice of supplement authority to address a new Appellate Court decision. On March 30, 2016, the defendants filed a brief in response to the town's notice of supplemental authority. On June 29, 2016, the parties submitted by stipulation Exhibit 11, which had been previously identified but not previously presented.
Overview of the Properties Today
The map reproduced below was created in July 2014 by the town's Geographic Information Systems (GIS map) and attached to the complaint as Exhibit 1. It depicts the properties as they are currently configured. Although the boundaries of the defendants' parcels have changed since 1966, when the cross easements were created, the GIS map nevertheless provides a visual frame of reference for discussing the history of the properties.
The GIS map depicts a large area of land that is horizontally divided by Green Manor Boulevard, a private road owned by L& J. Green Manor Boulevard runs westerly and northwesterly from Broad Street for 2076.75 feet, then turns to the north, running northerly for 904.2 feet to intersect Middle Turnpike West. Broad Street and Middle Turnpike West are public roads.
These distances are drawn from the metes and bounds description of Green Manor Boulevard contained in a 1966 declaration of easement. (Exhibit 24.)
The area encompassed within the metes and bounds description of the 1966 cross easement agreement includes the three properties south of Green Manor Boulevard that are shown on the GIS map as 416 Middle Turnpike West, owned by D-1; 296 Broad Street, owned by L& J; and the town's 17-acre parcel, which includes 324, 330, 334, and 340 Broad Street. The parcel labeled as 296 Broad Street includes a ten-foot-wide strip of land that runs along the southern edge of Green Manor Boulevard from the main portion of the parcel to Broad Street, giving the parcel its Broad Street address. Before 2007, the parcels now owned by D-1 and L& J were one parcel, and the town's 17-acre parcel directly abutted the southern boundary of Green Manor Boulevard. In 2007, L& J's predecessor resubdivided the property into its present configuration.
The magenta boundary line shown on Exhibits 20 and 25 represents the metes and bounds description in the 1966 cross easement agreement. (Meehan Testimony, July 21, 2015, pages 21-27.)
L& J owns the area described on the GIS map as the " northern parcel." Despite this description, the " northern parcel" shown on the GIS map includes Green Manor Boulevard and 296 Broad Street, which lies south of Green Manor Boulevard. The dark gray area labeled 286 Broad Street, where the Super Stop & Shop is located, was also part of the northern parcel owned by L& J's predecessor in 1966 but was conveyed away in 1992.
At present, the only building on the properties south of Green Manor Boulevard is a movie theater located on the parcel owned by D-1. The parcel owned by L& J is improved by a parking lot. The buildings on the town's 17-acre parcel were demolished in 2012.
Findings of Fact
When the town bought the 17-acre parcel, it was aware that the parcel was subject to cross easements involving 296 Broad Street and 416 Middle Turnpike West. The cross easements were created by an agreement of May 31, 1966, as amended by subsequent agreements recorded in the Manchester land records in 1969 and 1982.
The deed conveying the 17-acre parcel to the town references the cross easement agreement and amendments in Schedule B, paragraph 8. The deed is recorded in the Manchester land records at volume 3850, page 205. (Exhibit 2.)
The cross easement agreement is dated May 31, 1966, and is recorded with its attached plan in the Manchester land records at volume 418, page 643. (Exhibit 9.)
The 1969 amendment is dated August 29, 1969, and is recorded in the Manchester land records at volume 451, page 794. (Exhibit 13.)
The most recent amendment to the cross easement agreement is dated March 3, 1982, and is recorded in the Manchester land records at volume 804, page 194. (Exhibit 16.)
The controversy in this case concerns the interpretation and continuing utility of the cross easements. The interpretation is guided by the texts of the instruments creating and amending the cross easements and by the circumstances existing when they were created.
Those circumstances begin, as far as the record discloses, in the early 1940s, when members of the Ellis family, or entities owned or controlled by them, acquired substantial amounts of land in Manchester. In 1941, one Ellis entity, the Farm Lands Exchange Corporation (Farm Lands), acquired two pieces of land in Manchester. The first piece described in the deed encompassed both the northern and southern parcels shown on the GIS map as well as other land not at issue here.
The deed is dated January 21, 1941, and is recorded in the Manchester land records at volume 140, page 511. (Exhibit 47.) The spelling of Farm Lands' name varies in the documents of record. It is sometimes " Farm Lands" and sometimes " Farmlands."
Over the following decades, various parcels of the land acquired by Farm Lands in 1941 were conveyed back and forth among Ellis family members or entities they owned or controlled. In 1952, the Ellis Coat Company conveyed a parcel of land it had acquired from Farm Lands to Neil H. Ellis (Neil) and Constance J. Ellis (Constance), who were brother and sister. Constance subsequently married Seymour Kaplan (Seymour) and changed her name to Constance E. Kaplan. Neil, Constance, and Seymour were owners or officers of Farm Lands and its successor by merger, First Hartford Realty Corporation (First Hartford), as well as several other entities involved in the development of the northern and southern parcels.
The deed conveying land from the Ellis Coat Company to Neil and Constance was dated June 26, 1952, and recorded in the Manchester land records at volume 249, page 187, on July 28, 1952. (Exhibit 46.) It recites that the Ellis Coat Company acquired the land from Farm Lands by a deed recorded at volume 191, page 453. The deed from Farm Lands to the Ellis Coat Company is not in the court's record.
As evidenced both by the stipulation of facts and by the signatures on various instruments in evidence, Neil Ellis, Constance Ellis Kaplan, and Seymour Kaplan were some or all of the owners or officers of Farm Lands and First Hartford Realty Corporation, which merged with Farm Lands and succeeded it as the owner of the land to the north of the 17-acre parcel. Neil and Constance and Seymour were also some or all of the owners or officers of various entities that leased and developed the properties, including Green Manor Construction Co., Inc., Broad King Corporation, and Boulevard Corporation. Neil was the president of Farm Lands and First Hartford (Exhibit 51), and Seymour was the secretary or secretary-treasurer of Farm Lands and First Hartford (Exhibit 24, Exhibit 51), Green Manor Construction Co., Inc. (Exhibit 23), Broad King Corporation (Exhibit 30), and Boulevard Corporation (Exhibit 31).
The parcel acquired by Neil and Constance in 1952 included the 17-acre parcel but extended beyond it. In 1956, Neil and Constance conveyed back to Farm Lands a narrow strip of land to the north of the 17-acre parcel that eventually became part of the easterly section of Green Manor Boulevard.
This transfer is documented in Exhibit 49, a deed dated January 23, 1956, recorded on February 10, 1956, in the Manchester land records at volume 299, page 60.
In the early 1960s, Farm Lands and another Ellis entity, Green Manor Construction Company (Green Manor), began to develop the area closest to Middle Turnpike West as a shopping center. On November 21, 1961, a plot plan was prepared for the development to be known as the " Manchester Parkade." It included proposed retail stores, a department store, and a bowling alley. The Manchester Parkade was bounded on the north by Middle Turnpike West and on the south by Green Manor Boulevard, a private road created as part of the Manchester Parkade development. The land south of Green Manor Boulevard lay undeveloped for several more years.
Exhibit 38 is a copy of the 1961 plot plan for the Manchester Parkade. Green Manor Boulevard is its southern boundary.
An aerial photograph taken in 1965 depicts the development of the Manchester Parkade as it was first built. (Exhibit 33.)
Development of the land south of Green Manor Boulevard began, as far as the record discloses, in 1965. In June 1965, Neil and Constance leased a portion of what is now the 17-acre parcel to an Ellis-Kaplan entity, Broad King Corporation (Broad King), to develop a department store in a shopping center to be built south of Green Manor Boulevard. In September 1965, they leased another portion of the 17-acre parcel to another Ellis-Kaplan entity, Boulevard Improvement Corporation (Boulevard).
The notice of lease between Neil and Constance, as landlords, and Broad King Corporation, as tenant, was recorded in the Manchester land records on October 1, 1965, at volume 412, page 256. (Exhibit 30.)
The notice of lease between Neil and Constance, as landlords, and Boulevard Improvement Corporation, as tenant, was recorded in the Manchester land records on October 13, 1966, at volume 422, page 428. (Exhibit 31.)
Also in September 1965, some or all of the parcel now owned by D-1 was leased to Cinema East, Inc. A single-screen movie theater was subsequently built there. Although the lease to Cinema East identifies First Hartford as the " landlord, " it appears likely from other records that the property was owned by Neil and Constance at the time. More specifically, on January 13, 1966, Neil and Constance conveyed to Farm Lands property that includes the parcel with the movie theater. The deed does not contain a metes and bounds description, but the narrative description of the boundaries makes it clear that it included the parcels now owned by D-1 (416 Middle Turnpike West) and L& J (296 Broad Street).
The notice of lease between First Hartford and Cinema East, Inc., dated September 27, 1965, was recorded in the Manchester land records on December 28, 1965, at volume 414, page 487. (Exhibit 37.) Nothing in the record suggests that Cinema East was an Ellis entity.
The deed from Neil and Constance to Farm Lands describes a parcel bounded on the north by Green Manor Boulevard, on the east by other land of Neil and Constance, on the south by land of the St. James Church Corporation, and on the west in part by Pine Acres Terrace and in part by other land of Farm Lands. (Exhibit 50.) Pine Acres Terrace lies to the west of the parcel now owned by D-1. (See Exhibit 39.)
On January 13, 1966, the same day that Neil and Constance conveyed to Farm Lands the parcel described above, Farm Lands, First Hartford, and Connecticut General Life Insurance Company as mortgagee granted an easement for the use of Green Manor Boulevard to Farm Lands and Neil and Constance as owners of premises that were described as the " shopping center" described in the Broad King lease.
The deed conveying land from Neil and Constance to Farm Lands was dated January 13, 1966, and recorded in the Manchester land records at volume 415, page 43, on January 14, 1966. (Exhibit 50.) The easement for the use of Green Manor Boulevard was also signed on January 13, 1966, and recorded in the Manchester land records at volume 415, page 49, on January 14, 1966. (Exhibit 24.)
Effective February 1, 1966, Farm Lands and First Hartford merged. First Hartford was the surviving entity. Through that merger, First Hartford became the owner of the Manchester Parkade to the north of Green Manor Boulevard, Green Manor Boulevard itself, and the western parcel lying south of Green Manor Boulevard.
The certificate of merger of Farm Lands and First Hartford was recorded on February 23, 1966, at volume 416, page 72 in the Manchester land records. (Exhibit 51.)
On May 31, 1966, the cross easements at issue in this case were created by an agreement by and among Neil and Constance, as owners of the 17-acre parcel; First Hartford, as owner of the parcel that Farm Lands had acquired from Neil and Constance in January 1966; and Broad King and Boulevard, as tenants of Neil and Constance. The stated purpose of the cross easement agreement was to facilitate the development of " a commercial unity forming a 'shopping center, ' so-called." (Exhibit 9.) The shopping center's developers were Broad King, Boulevard, and First Hartford. The shopping center, as described in metes and bounds, included the parcel south of Green Manor Boulevard that Neil and Constance had conveyed to Farm Lands as well as their 17-acre parcel, but it did not include any properties north of Green Manor Boulevard. The cross easement agreement incorporated a plan, annexed to it as Exhibit A, that showed the placement of buildings and parking areas. A copy of Exhibit A to the cross easement agreement is attached as Appendix A to this decision. The movie theater was the only structure on the western parcel; all the retail stores were shown on the 17-acre parcel. The shopping center came to be known as the Broad Street Parkade.
The cross easement agreement dated May 31, 1966, was recorded in the Manchester land records at volume 418, page 643, on June 1, 1966. (Exhibit 9, enlarged in Exhibit 41.)
In general terms, the cross easement agreement obligated First Hartford, Broad King, and Boulevard to construct and maintain sidewalks and parking areas as shown on the plan, which encompassed all of the parties' parcels south of Green Manor Boulevard. It allowed the use of these common facilities for parking and access by all parties to the agreement, and it granted subsurface cross easements for utilities as needed. The cross easement agreement provided that its covenants were intended to run with the land and could only be released, modified, or terminated by mutual agreement, in writing, duly executed by all of the parties or corporations owning the premises described in the cross easement agreement.
More specifically, the 1966 cross easement agreement defines Neil and Constance as " Owner, " First Hartford as " Realty, " and the tenants Broad King as " Broad, " and Boulevard as " Boulevard." (Exhibit 9.) It then provides in relevant part as follows:
WHEREAS, Realty and Owner hold title in fee to certain land at the southwest corner of Broad Street and Green Manor Boulevard in the Town of Manchester, County of Hartford, State of Connecticut, which land is more particularly hereinafter described, and WHEREAS, Broad and Boulevard, both as Lessees from Owner, and Realty, are now engaged in the development of said land as a commercial unity forming a " shopping center, " so-called, and WHEREAS, effective development of the shopping center requires common rights for motor vehicle traffic, parking, utilities, and other uses, NOW, THEREFORE, in consideration of the premises, and in consideration of the mutual promises and agreements hereinafter contained, the parties do hereby agree between themselves as follows: 1. Broad, Boulevard and Realty will construct and maintain all such sidewalks, driveways, parking areas, curbs, light standards, grading, bituminous paving, drainage facilities, guard rails, traffic control devices, retaining walls, if any, landscaped spaces and other public facilities on their respective parcels, all as shown on a plan annexed hereto, marked Exhibit A and initialed by the parties. The parcels of the respective parties are labeled on said Exhibit A as follows: Broad Parcel A Boulevard Parcel B Realty Parcel C The entire shopping center is bounded and described as follows: [There follows a metes and bounds description which is omitted here. The metes and bounds description is illustrated by the magenta line on Exhibits 20 and, as shown there, encompasses both the town's 17-acre parcel and the defendants' current parcels.] 2. The boundary lines between the respective parcels of Broad, Boulevard and Realty and the respective parking areas to be constructed by said parties shall meet at a grade to be established by the said parties and no fence, wall, hedge or other barrier shall be erected between said parcels of land. 3. Neither Broad, Boulevard nor Realty shall be liable or responsible for the construction or maintenance of any such parking areas on the land owned or occupied by any other party hereto. 4. All such common facilities, as described in Article 1, on the parcels A, B, and C shall and may be used and enjoyed in common, without charge, by each of the parties hereto, their respective tenants, tenants' employees, customers, business visitors and other invitees. 5. Broad, Boulevard and Realty do hereby grant and convey to one another all necessary subsurface easements for utility lines, including without limiting the generality of the foregoing, storm sewers, sanitary sewers, electric lines, gas lines, water lines and telephone lines, at such locations as may have been, or may hereafter be, agreed upon among themselves. 6. The covenants contained herein shall be deemed to run with the above described and referred to land and shall enure to the benefit of the parties hereto and their successors in title, and to them only, and may only be released, modified, or terminated by mutual agreement of the persons or corporations at the time owning all of the aforesaid premises, which agreement must be in writing, duly executed and acknowledged in accordance with the requirements for the execution of deeds concerning titles of real estate.
In 1969, the parties amended the cross easement agreement to allow Neil and Constance to lease a portion of the 17-acre parcel, previously leased by Broad-King and its tenant King's Department Stores, to a gasoline station to be built on Broad Street. Although plans are referenced as exhibits to that amendment, the plans were not attached when the amendment was filed in the land records.
The 1969 amendment confirms the parties' intention that any modifications to the 1966 cross easement agreement required written consent of all parties, but otherwise is of little use in interpreting the cross easement agreement because it narrowly focuses on the release of the areas that include and are adjacent to the gasoline station. The 1969 amendment was recorded in the Manchester land records at volume 451, page 794, on December 24, 1969. (Exhibit 13.) It references two maps as exhibits that were not filed on the land records with the easement. In response to a question from the court as to the location of the gasoline station, the parties noted the location on Exhibit 39, a map apparently filed with the town by Broad King and Boulevard. The date of the map is unclear. At the bottom of the map is a box stating " Property of Broad King Corp. And Boulevard Improvement Corp., Broad Street & Green Manor Blvd. Manchester Conn. Oct. 21, 1965." However, the map also depicts the gasoline station, which was added in 1969, and a 1972 addition to the theater. The map also depicts what appears to be the areas labeled " Parcel A, " " Parcel B, " and " Parcel C" in the 1969 amendment, which are shown as three relatively small areas fronting on Broad Street. These parcels are different from the parcels identified as A, B, and C in the 1966 cross easement agreement.
In 1972, the movie theater expanded its footprint, adding a lobby and two additional theaters to the original single-screen theater. At the bottom of the first page of the site plan for the theater expansion, a reference to " Parking for the Manchester Shopping Parkade" appears to suggest that the parking areas adjacent to the theater were used for the Manchester Parkade. At the time of the movie theater expansion, the properties in the cross easement area were still owned by the original parties to the 1966 cross easement agreement. There is no evidence that they amended the cross easement agreement to manifest their consent to this expansion.
A site plan for the expansion was filed with the town in 1972. (Exhibit 14.) Photographs of the theater before and after its expansion are in Exhibit 15.
In 1974, First Hartford quitclaimed its interest in its properties to JMB Income Properties Ltd. II, an Illinois limited partnership (JMB). The properties conveyed were described as three separate parcels. The land described as " Parcel II" in the quitclaim deed, which was then known as 308 Broad Street, appears to be the land shown as " Parcel C" in the plan annexed to the 1966 cross easement agreement--that is, the parcel now subdivided into 416 Middle Turnpike West and 296 Broad Street.
The quitclaim deed was dated May 31, 1974, and recorded in the Manchester land records on June 4, 1974, at volume 546, page 101. (Exhibit 28.)
In 1980, JMB conveyed the properties it acquired from First Hartford to A.F. Cutaia & Company (Cutaia company), which in turned conveyed it to Broadmanor Associates, a limited partnership of which A.F. Cutaia was the general partner. In 1981, the Cutaia company acquired the 17-acre parcel as trustee for a trust. The 17-acre parcel changed owners several times in 1981, finally being owned by the trustees of the FNM Trust.
The chain of title for L& J's properties, including 296 Broad Street, is summarized in Exhibit 5. The chain of title for D-1's property at 416 Middle Tumpike West is summarized in Exhibit 6.
See Exhibit 4 (chain of title for 17-acre parcel) and Exhibit 16 (1982 amendment to 1966 easement describing the then-current owners of the property).
In 1982, the new owners of the properties within the cross easement area amended the agreement to allow the construction of a 40, 000 square foot Stop & Shop supermarket on the easterly side of the shopping center between an existing building and the gas station on Broad Street. The 1982 amendment, captioned " Agreement and Consent, " redefined the " shopping center." Where the 1966 agreement had referred to the entire area encompassed by the metes and bounds description as the " shopping center, " the 1982 amendment limited the term " Shopping Center" to the 17-acre parcel. It referred to the area now owned by the defendants as " Parcel C, " using its designation in the plan attached to the original cross easement agreement in 1966. " For consideration paid, " the parties to the 1982 amendment agreed to the construction of the supermarket and " the restriping of parking areas in the Shopping Center and Parcel C as shown on the plan submitted to the Town of Manchester, Connecticut, in connection with the construction consented to above." They further agreed that the Shopping Center would have the benefit of parking and access rights in Parcel C, and that Parcel C would have the benefit of parking and access rights in the Shopping Center. Except as modified, the parties agreed that the 1966 cross easement agreement would continue in full force and effect. The 1982 amendment is the last recorded amendment to the 1966 cross easement agreement.
Exhibit 16 is a copy of the 1982 " Agreement and Consent" amending the 1966 easement. It is recorded in the Manchester land records at volume 804, page 194. It provides in relevant part as follows:
Reference is made to a certain Agreement entered into as of May 31, 1966, by and between Broad-King Corp., Boulevard Improvement Corp., First Hartford Realty Corporation and Constance E. Kaplan and Niel H. Ellis, recorded with the Manchester Land Records Office in Volume 418, Page 643, as same has been amended by Agreement and Easement dated August 29, 1969 . . . recorded with the Manchester Land Records Office in Volume 451, Page 794. The said Agreement, as so amended, is hereinafter referred to as the " Agreement, " and in part relates to the Shopping Center known as the Broad Street Parkade, located on Green Manor Drive and Broad Street, Manchester, Connecticut, hereinafter referred to as the " Shopping Center" and designated as " Parcel A" on Exhibit 1 attached hereto. [Exhibit 1 to the 1982 agreement is attached to this decision as Appendix B.*] Joel B. Wilder, Albert L. Manley, and Theodore S. Berenson, as Trustees of FNM Trust . . . are presently the owners of record of the Shopping Center, and are hereinafter referred to as the " Parkade Owners." Broadmanor Associates . . . is presently the owner of record of real property referenced in the Agreement as " Parcel C" and shown on Exhibit A attached to and recorded with the Agreement and designated as " Parcel B" on Exhibit 1 attached hereto. Said Broadmanor Associates is hereinafter referred to as the " Parcel C Owner" . . . For consideration paid, the receipt of which is hereby acknowledged, the Parties agree and consent to the following: (a) The construction of store premises containing not more than 40, 000 square feet of ground floor area, which store premises are intended to be leased originally to the Stop & Shop Companies, Inc. and which will be located in the Shopping Center, at the location on the easterly side of the Shopping Center between the existing building formerly occupied as a King's Department Store and the existing gas station fronting Broad Street. (b) The restriping of parking areas in the Shopping Center and Parcel C as shown on the plan submitted to the Town of Manchester, Connecticut, in connection with the construction consented to above. (c) That Parcel C shall have the benefit of parking and access rights in the Shopping Center to the extent set forth in the Agreement as modified by the construction consented to above. (d) That the Shopping Center, as modified by the construction consented to above, shall have the benefit of parking and access rights described in the Agreement with respect to Parcel C. (e) That except as agreed to herein, the Agreement shall continue in full force and effect and that a copy of this Agreement and Consent will be delivered to all parties in interest with the intention and understanding that they will rely upon it. (f) Nothing herein contained shall constitute a representation that the aforesaid construction shall occur.
The Manchester Parkade and the Broad Street Parkade served as the hub of the town's retail and commercial center through the 1980s. In 1990, however, the opening of the Buckland Hills Mall in Manchester had an immediate adverse effect on both the Manchester Parkade and the Broad Street Parkade. It drew away many of the larger stores that had occupied space in the two shopping centers, resulting in vacancies in both.
A further blow to the Broad Street Parkade occurred in 1991, when Broadmanor sold a parcel in the Manchester Parkade, north of Green Manor Boulevard, to Virginia Realty Company for the construction of a new Super Stop & Shop. When the Super Stop & Shop opened in 1992, the Stop & Shop built only ten years earlier in the Broad Street Parkade closed its doors.
The deed conveying 286 Broad Street (the Super Stop & Shop site) to Virginia Realty Company was recorded in the Manchester land records at volume 1453, page 86, on June 25, 1991. (Exhibit 27.)
In 1993, Broadmanor lost its property in a foreclosure proceeding. It had mortgaged all of its contiguous land (including the Manchester Parkade, Green Manor Boulevard, and " Parcel C") to National Westminster Bank in 1988, and that mortgage was assigned to Leon Charney and Jerome Chazen in 1992. Charney and Chazen commenced the foreclosure proceeding in 1992 and acquired title to the property by certificate of foreclosure in May 1993. In 1994, they transferred the property to L& J Manchester, LLC, the predecessor of defendant L& J. L& J Manchester, LLC invested approximately fifteen million dollars in improvements to the Manchester Parkade north of Green Manor Boulevard but did not build any new structures on its parcel south of Green Manor Boulevard.
Exhibit 36 is a copy of the mortgage deed and the certificate of foreclosure.
In 2005, L& J Manchester, LLC transferred its property to the defendant L& J, a separate entity apparently created for tax purposes. L& J resubdivided the property in 2007, dividing the southern parcel (" Parcel C" in the 1966 cross easement plan) into two parcels. The western part of the parcel was redesignated as 416 Middle Turnpike West and the eastern part of the parcel was redesignated as 296 Broad Street. This resubdivision also modified the location of Green Manor Boulevard, creating the long, narrow strip of land that runs from Broad Street to 296 Broad Street to give 296 its Broad Street address. In 2009, L& J conveyed 416 Middle Turnpike West to D-1, retaining 296 Broad Street for its own use.
Compare Exhibit 1, an " as built" survey map prepared for L& J Manchester, LLC in 1995, with Exhibit 12, the L& J resubdivision plan filed with the town in 2007.
While the prospects of the Manchester Parkade improved after L& J's predecessors took over the property in 1993, the Broad Street Parkade continued its precipitous decline. The buildings on the 17-acre parcel became vacant and blighted, and the shopping center ceased to function. As the buildings deteriorated, so did the condition of other properties along Broad Street.
Exhibit 21 contains photographs of portions of the 17-acre parcel in the blighted condition in which the town acquired it.
In response to a public outcry about the blighted condition, in 2008 the town's board of directors (board) charged the Manchester Redevelopment Agency (RDA) with establishing a plan to redevelop the Broad Street area, particularly including the 17-acre parcel and neighboring properties. A " Broad Street Redevelopment Plan" (plan) was approved by the RDA and the board in 2009. The plan calls for the creation of a mixed-use development, including retail, residential, green space, and possibly civic uses. In November 2009, Manchester voters approved an eight million dollar bond referendum to facilitate the plan of redevelopment. The town acquired the 17-acre parcel from FNM Manchester, LLC in March 2011. In 2012, the town demolished all the structures on the 17-acre parcel. The parcel is now clear, commercially zoned, and amenable to redevelopment.
The deed reflecting the town's acquisition is recorded in the Manchester land records at volume 3850, page 205. (Exhibit 2.)
The town's ability to redevelop the parcel has been frustrated by the defendants' interpretation of the cross easement agreement. The defendants contend that the town must obtain the defendants' consent with respect to the mass and placement of buildings on the property. Defendant L& J also contends that the cross easement agreement benefits not only 296 Broad Street but also the entire Manchester Parkade.
The town, to the contrary, interprets the cross easement agreement as concerning only the properties south of Green Manor Boulevard, including the 17-acre parcel, 296 Broad Street, and 416 Middle Turnpike West. The town further interprets the cross easement agreement to concern only parking rights, ingress and egress, and use of the common facilities. It denies that the cross easement agreement gives the defendants a say in the mass or placement of new structures on the 17-acre parcel.
Although the town disputes L& J's interpretation of the agreement, it tried for two years to negotiate the purchase of 296 Broad Street so that it could develop the 17-acre parcel free of L& J's claims. The parties were unable to agree on acceptable terms. In September 2013, the RDA authorized the town to acquire 296 Broad Street by eminent domain.
The defendants opposed the condemnation and threatened to take legal action to enjoin it. They argued that the cross easement agreement does not prevent the redevelopment of the 17-acre parcel and they notified the town that they had no objection to the proposed mixed-use development proposed by the RDA. They continued to insist, however, that the town must obtain their consent as to the mass and placement of structures on the 17-acre parcel.
Thereafter, the RDA and L& J continued to negotiate the town's purchase of 296 Broad Street. They engaged in an expensive and unsuccessful private mediation. After the failure of the mediation, the town decided to bring this action rather than pursuing the condemnation.
Additional facts will be stated in the analysis below.
Summary of Issues
The parties presented four issues, summarized below, for the court to resolve:
1. Does L& J have standing to claim benefit in the cross easement agreement?
2. Does the cross easement agreement require the defendants' consent as to the mass and placement of buildings on the town's 17-acre parcel?
3. Does the cross easement agreement benefit L& J's Manchester Parkade property as well as 296 Broad Street and 416 Middle Turnpike West?
4. Has the cross easement agreement been extinguished by operation of law because the " commercial unity" between the original parties no longer exists and the 17-acre parcel is no longer being used as shopping center?
As explained below, the short answers to these questions are as follows:
1. Yes. L& J has standing to claim benefit in the cross easement agreement.
2. No. The cross easement agreement, as amended in 1982, requires the parties to maintain the parking areas developed in 1982, but does not otherwise constrain the development of the parcels.
3. Yes. The cross easement agreement benefits 416 Middle Turnpike West, 296 Broad Street, and the Manchester Parkade to the north.
4. No. The cross easement agreement as amended in 1982 remains in force.
ANALYSIS
The parties agree that the May 1966 agreement created cross easements that burden and benefit both the town's and the defendants' parcels. The town's 17-acre parcel is the servient estate with respect to the defendants' rights under the cross easement agreement and the dominant estate with respect to the town's rights to use the defendants' parcels. Conversely, the defendants' parcels are servient estates with respect to the town's rights under the cross easement agreement and dominant estates with respect to the defendants' rights to use the 17-acre parcel.
The principles that govern the interpretation of easements are well established. An easement " creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the rules authorized by the easement." (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 700, 923 A.2d 737 (2007). " An easement has six primary characteristics: (1) it is an interest in land in the possession of another, (2) it is an interest of a limited use or enjoyment, (3) it can be protected from interference by third parties, (4) it cannot be terminated at will by the possessor of the servient land, (5) it is not a normal incident of a possessory land interest, and (6) it is capable of creation by conveyance . . .'" Kepple v. Dohrmann, 141 Conn.App. 238, 246, 60 A.3d 1031 (2013), quoting 4 R. Powell, Real Property (2010) § 34.01[1], p. 34-1. In construing a deed or other instrument that creates an easement, " a court must consider the language and terms of the instrument as a whole . . . Our 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." (Ellipses omitted; emphasis in original; internal quotation marks omitted.) Bolan v. Avalon Farms Prop. Owners Ass'n, 250 Conn. 135, 140-41, 735 A.2d 798 (1999). " In determining the character and extent of an easement created by deed, the ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or surrounding circumstances that calls for a different interpretation." (Internal quotation remarks omitted.) Stefanoni v. Duncan, supra, 282 Conn. 700. " The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." (Internal quotation marks omitted.) Id., 701.
In addition, our law favors interpreting servitudes to support their validity. " '[T]he general principle that servitudes should be interpreted in favor of validity, in contrast to the old rule that favored construction in favor of the free use of land, facilitates safeguarding the public interest in maintaining the social utility of land while minimizing legal disruption of private transactions. A similar role is played by the rule that where two or more reasonable interpretations of a servitude are possible, the one more consonant with public policy is to be preferred.'" NPC Offices, LLC v. Kowaleski, 320 Conn. 519, 527, 131 A.3d 1144 (2016), quoting 1 Restatement (Third) Property, Servitudes § 4.1, comment (a), p. 498 (2000).
I
L& J's Interest Under the Marketable Title Act
In its pretrial brief, the town claimed that L& J's interest in the cross easements was extinguished under the Marketable Title Act, General Statutes § 47-33b et seq. (the act), because the cross easement agreement was not recited in any recorded instrument in L& J's chain of title within the last forty years in the manner necessary to preserve the interest. L& J argued, to the contrary, that its interest was preserved because (1) the cross easement was specifically described and incorporated into deeds in the town's chain of title, which is the relevant consideration, and (2) the cross easement was specifically described in a mortgage deed dated December 9, 1988, from Broadmanor Associates to National Westminster Bank, N.A., which mortgage was later acquired and foreclosed by L& J's predecessors in title, Leon H. Charney and Jerome Chazen. At oral argument on October 14, 2015, the town's counsel acknowledged that the mortgage deed was a " title transaction" within the definition of the act, effectively withdrawing the town's argument that L& J's interest in the easement had been extinguished by the act.
The court agrees that L& J has a cognizable interest in the cross easements. In the first place, as L& J correctly argues, the cross easement agreement is referenced in the deed of conveyance to the town and the deeds of all its predecessors in interest. " Pursuant to the act, any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record (which is the root of title under the act) has a marketable record title subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title . . . The act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty-year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title." (Internal quotation marks omitted.) Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 724, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006). " [T]he act operates to extinguish interests that burden a servient estate if those interests are not properly preserved in the forty-year period." (Emphasis in original.) Id., 725. In this case, the servient estate burdened by L& J's interest is the town's 17-acre parcel. " The act does not extinguish benefits appurtenant to the dominant estate; it extinguishes burdens appurtenant to the servient estate." Id., 726. Accordingly, L& J's interest in the cross easement is preserved by the instruments in the town's chain of title, including the deed to the town in 2011, that reference the cross easement agreement.
L& J is also correct that the cross easement is adequately referenced in Schedule B of the mortgage given by Broadmanor Associates in 1988, well within the forty-year period for measuring the marketability of title. That mortgage was recorded in the Manchester land records on December 12, 1988, and constitutes a " title transaction" under the act. See General Statutes § 47-33b(f). Even if the act applied to the dominant estate, it would not extinguish L& J's interest in the cross easement.
General Statutes § 47-33b(f) provides in relevant part: " 'Title transaction' means any transaction affecting title to any interest in land, including, but not limited to, title . . . by mortgage or by decree of any court."
II
The Defendants' Rights as to Mass. and Placement of Improvements to the Town's Parcel
The defendants contend that the cross easements at issue are undefined as to size and location and thus are " floating easements" that burden the town's entire 17-acre parcel. A " floating easement" is an easement that, " by the terms of its creating instrument, has not been confined to a specific location on the servient estate . . . Without language defining its location, the easement is said to float because it potentially could be exercised anywhere on the servient estate and therefore constitutes a burden on the entire servient estate." (Citation omitted.) Coughlin v. Anderson, 270 Conn. 487, 493 n.7, 853 A.2d 460 (2004). The town argues, to the contrary, that the agreement does not burden the entire parcel, but at most requires that the parties maintain the " same amount" of parking spaces and common facilities as shown on the plan attached to the 1966 agreement.
The court disagrees with both the town and the defendants. The parking and access easements are not undefined. To the contrary, they are expressly defined by reference to plans incorporated into the agreements. The parties are obligated to maintain the parking areas, as modified by the 1982 amendment, and the subsurface utilities that are fixed by the prior exercise of their rights, but they are otherwise unconstrained in their ability to develop their own parcels.
The parties stipulated that the cross easement agreement " does not define the particular areas on either Parcel A, Parcel B, or Parcel C, over which the parties may pass, repass, and park." (Stipulation of Facts, paragraph 28.) This stipulation is not a statement of fact but an interpretation of the cross easement agreement. It overlooks the significance of the plan attached to the agreement.
More specifically, the May 1966 cross easement agreement expressly stated that the parties were responsible for constructing and maintaining " such sidewalks, driveways, parking areas . . . and other public facilities on their respective parcels, all as shown on a plan annexed hereto, marked Exhibit A and initialed by the parties ." (Emphasis added.) Although the attached plan, which was recorded with the agreement, was in a reduced format that makes its legends difficult to read now, it is nevertheless apparent that specific parking areas were defined on the plan and were thereby incorporated into the agreement.
The 1966 plan sketches parking areas on the 17-acre parcel and the words " Proposed Parking" appear immediately below the words " Parcel C." See Exhibit 41.
The 1969 amendment expressly releases from the cross easement agreement a small parcel of land on the easternmost limit of the 17-acre parcel for the construction of a gas station. The 1969 amendment refers to two exhibits which were intended to identify the exact extent of the area so released.
Although those exhibits were not filed in the land records with the amendment, they appear to be shown on Exhibit 39. The parties filed Exhibit 39 in response to the court's request that they provide evidence to identify the location of the gas station.
The 1982 amendment expressly modified the parking areas by consenting to the " restriping of parking areas . . . as shown on the plan submitted to the Town of Manchester, Connecticut, " in connection with the construction of the Stop & Shop supermarket. Although the plan referenced in the 1982 amendment was not submitted as an exhibit for the court, no party has argued that the parking areas were not developed as planned in 1982. From the court's own view of the property, conducted with counsel on September 15, 2015, it was apparent that the parking areas in the cross easement area are still clearly defined, despite the demolition of the buildings on the 17-acre parcel.
The town points out, however, that the 1966 cross easement agreement was not amended in 1972, when the movie theater on the defendants' parcel was expanded from a one-screen theater to a three-screen theater. The town argues that this unconsented-to expansion establishes that consent is not required to build new structures and reconfigure parking spaces. The court disagrees with the inference drawn by the town. Why the parties did not execute and record an amendment in 1972 is simply not known. What is known is that in 1972, all the properties within the cross easement area were still owned by members of the Ellis and Kaplan families or entities they owned and controlled. Their knowledge of and consent to the expansion of the theater can reasonably be inferred. When the properties were sold to unrelated parties, those parties clearly understood the need for written consent to the reconfiguration of the parking areas, and they expressly agreed, in 1982, to the " restriping" of the parking areas on the parcels subject to the cross easement agreement.
Even if the parking areas had not been expressly defined in the 1966 cross easement agreement and expressly modified by the 1982 amendment, moreover, the subsequent construction of parking areas and routes of ingress and egress pursuant to the agreement would have fixed their location. See Coughlin v. Anderson, supra, 270 Conn. 509 (" Once a floating easement has been used by the easement holder in a certain manner and once the owner of the servient estate has acquiesced in such use, the easement has become fixed and the easement holder, absent an express grant of authority to do so, thereafter may not vary the location of the easement to another portion of the servient property without the consent of the servient estate owner").
In Alligood v. LaSaracina, 122 Conn.App. 473, 999 A.2d836 (2010), the Appellate Court applied the principle in Coughlin when it specifically rejected a claim that the owner of a servient estate could alter an easement after its location had been fixed. The court adopted the rule recognized by a majority of jurisdictions that " once the location of easement has been selected or fixed, it cannot be changed by either the landowner or the easement owner without the other's consent." (Internal quotation marks omitted.) Id., 476. It compared the majority rule to a more flexible approach adopted in the Restatement (Third) Property, Servitudes § 4.8, which allows the owner of a servient estate to make " reasonable changes in the location or dimensions of an easement" under certain circumstances. The Appellate Court observed: " Like many of the jurisdictions faced with this question, we believe that the attributes of the majority rule, namely, uniformity, stability, predictability and judicial economy, outweigh any increased flexibility offered by the Restatement approach." Alligood v. LaSaracina, supra, 122 Conn.App. at 478. It observed that the Restatement approach is a " catalyst for increased litigation" and a means for a servient estate to reap a windfall at the expense of a dominant estate. Id. It concluded that the " majority rule encourages property owners to bargain for and consent to alterations that maximize the development and utility of both the dominant and servient estates." Id.
The Restatement (Third) Property, Servitudes § 4.8(c)(3), provides in relevant part: " Unless expressly denied by the terms of an easement . . . the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not: (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created."
In summary, under the express terms of the cross easement agreement, as amended, and under Connecticut law as discussed in Coughlin and Alligood, each party is required to maintain the previously developed parking areas for the benefit of the other parties to the agreement. The parcels owned by D-1 and L& J are burdened by the town's rights, just as the town's parcel is burdened by the rights of D-1 and L& J. The court concludes that the consent of all parties, in a writing " duly executed and acknowledged in accordance with requirements for the execution of deeds concerning titles of real estate, " is required to modify the parking areas on any of the three parcels currently burdened and benefitted by the cross easement agreement. The parties are not constrained from developing structures that do not infringe on those parking areas.
May 1966 cross easement agreement, paragraph 6. (Exhibit 9.)
III
The Extent of L& J's Cross Easement Rights
Defendant L& J argues that the cross easement agreement benefits not only 416 Middle Turnpike West and 296 Broad Street, but also the Manchester Parkade to the north. The town argues, to the contrary, that the benefit of the 1966 cross easement agreement extends only to the area within the metes and bounds description it contains. This is the most difficult of the questions presented by the parties. The principles by which it should be decided are well established, but in this case, point to different conclusions.
" [T]he scope of an easement is what its holder may do with it, the purposes for which it may be used . . . Typically, to discern the scope of an easement, the deeds, maps and recorded instruments that created the easement must be considered in light of the surrounding circumstances to determine [its] nature and extent." (Citation omitted; internal quotation marks omitted.) McBurney v. Paquin, 302 Conn. 359, 367, 28 A.3d 272. " 'If the servitude is expressly created, the expressed intentions of the parties are of primary importance.'" Id., n.8, quoting 1 Restatement (Third) Property, Servitudes § 4.1, comment (a), p. 498. " The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." (Internal quotation marks omitted.) Stefanoni v. Duncan, supra, 282 Conn. at 701.
In this case, the text of the 1966 cross easement agreement generally supports the town's position. The metes and bounds description, as the parties agree, encompasses only the parcels south of Green Manor Boulevard--416 Middle Turnpike West, 296 Broad Street, and the 17-acre parcel. The plan attached to and incorporated into the cross easement agreement does not indicate the existence of the Manchester Parkade. Neither the 1966 cross easement agreement nor its subsequent amendments refer in any way to the Manchester Parkade.
The defendants assert that the agreement's reference to the benefit to the parties' " tenants" must refer to the tenants at the Manchester Parkade because First Hartford had no tenants on its parcel. That assertion is obviously inaccurate. First Hartford had leased part of its parcel to Cinema East in September 1965. Cinema East was its tenant in 1966 and undoubtedly had employees, customers, business visitors, and others who could benefit from the cross easement agreement.
If construed only with reference to the language of the 1966 cross easement agreement, then, the court would have to agree with the town that the Manchester Parkade derives no benefit from that agreement. In construing a deed or other conveyance, 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." (Internal quotation marks omitted.) Kepple v. Dohrmann, supra, 141 Conn.App. 242. " [T]he ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation ." (Emphasis added; internal quotation remarks omitted.) Stefanoni v. Duncan, supra, 282 Conn. at 700. See also Wykeham Rise, LLC v. Federer, 305 Conn. 448, 477, 52 A.3d 702 (2012) (holding that circumstances surrounding a land transaction created an ambiguity as to whether covenants in a deed were intended to benefit a third party not mentioned in the deed).
In this case, the circumstances surrounding the creation of the cross easements support L& J's argument that the cross easements for parking (as distinguished from the subsurface utility easements) were intended to benefit all of First Hartford's parcels, including the Manchester Parkade parcel as well as the movie theater parcel. The Manchester Parkade was in an advanced state of development before the cross easements were created. This can be seen visually on Exhibit 33, an aerial photograph taken in 1965. It shows a substantial number of buildings, approximately in the same locations as the buildings in the Manchester Parkade today, all north of Green Manor Boulevard. Nothing had yet been built south of Green Manor Boulevard. Neil and Constance had been developing plans for the Broad Street Parkade at least since the summer and fall of 1965, when they entered into leases with Broad King and Boulevard, but the Broad Street Parkade was not nearly so far along in development as the Manchester Parkade. In January 1966, they conveyed the parcel now owned by the defendants to the family company that owned the Manchester Parkade, rather than retaining that parcel for the sole use of the shopping center they were developing south of Green Manor Boulevard.
There is no evidence that the Manchester Parkade was ever intended to benefit from, or ever did receive benefits from, the cross easements for subsurface utilities.
The relative degree of development of the Manchester Parkade to the north of Green Manor Boulevard and the Broad Street Parkade to the south can be readily seen by comparing Exhibits 33, 34, and 35, which are aerial photographs of the entire area taken in 1965, 1970, and 1985-1986, respectively. Exhibit 33 shows extensive development north of Green Manor Boulevard but empty land to its south. Exhibit 34, taken five years later, shows Cinema East on upper northwest corner of the area south of Green Manor Boulevard and a few distant buildings along the southern edge of the 17-acre parcel, as well as the gas station fronting on Broad Street. Exhibit 35, taken a decade later than Exhibit 34, shows the fully developed Broad Street Parkade on the 17-acre parcel, including the recently constructed Stop & Shop supermarket.
As a result of that conveyance, First Hartford unquestionably had the right to use its own portion of the cross easement area (Parcel C on the exhibit to the 1966 agreement) for parking for its tenants and their customers at the Manchester Parkade. That right existed by virtue of its ownership of the parcel, independent of the existence of any easements. It is unlikely that the parties would intend to use Parcel C for Manchester Parkade parking but not intend to allow tenants and customers of the Manchester Parkade to park on the cross easement areas on Parcels A & B.
The physical situation of Parcel C is another circumstance to be considered. It is a large expanse of land. Except for the small movie theater still there today, the parcel has never been improved by anything other than a paved parking lot. If one stands on the parking lot on 296 Broad Street, and looks north, what can be seen is the back of the buildings that make up the Manchester Parkade. If one had been standing in the same spot but looking east toward the 17-acre parcel in the mid-to-late 1960s, one would have seen the sides of the first buildings in the Broad Street Parkade at a substantial distance and up a slight incline.
See the 1970 aerial photograph of the area in Exhibit 34.
The court's conclusion, from its view of the properties and its review of the documents and photographs in evidence, is that the parcel now called 296 Broad Street is, and since the 1960s has been, used for overflow parking from the Manchester Parkade and from the Broad Street Parkade while it existed. It would not normally be a customer's first choice for parking in either shopping center because of its distance from both and its orientation away from the front of the shops in each. It is, however, accessible to both. It can provide additional customer parking when needed at peak times, such as holiday seasons, and it can be used for employee parking at any time.
Another circumstance supporting L& J's argument that the cross easement agreement was intended to benefit the Manchester Parkade can be found on the front page of the site plan for the 1972 expansion of the movie theater. It appears to designate the area just beyond the movie theater as " Parking for Manchester Shopping Parkade." Although this expansion occurred six years after the cross easements were created, it may still be considered, especially in light of the fact that in 1972 all of the properties remained under the common control of the families and entities that had created the cross easements in 1966. " So long as the evidence bears a reasonable relation to what was considered reasonably necessary for the [the conveyance's] use and normal enjoyment at the time of the conveyance and consideration of such evidence does not pose a risk of expand[ing] or contract[ing] the scope of [a conveyance] in contravention of the intent of its creator, postconveyance evidence may properly be considered by a trial court." (Internal quotation marks omitted.) Deane v. Kahn, 317 Conn. 157, 170, 116 A.3d 259 (2015). This evidence is consistent with the testimony of the surveyor, Richard Meehan, who said that the parking on the defendants' parcel has long been included as parking for the Manchester Parkade.
In this case, evidence of the use of the defendants' parcel as parking for the Manchester Parkade at or soon after the creation of the cross easements is strong evidence of the parties' intent to benefit the Manchester Parkade by the cross easements for parking. This evidence outweighs any presumption to the contrary that might be based on absence of its express mention in the cross easement agreement. Accordingly, the court concludes that the parties creating the cross easement intended to make use of the parking rights it conveyed for the benefit of both shopping centers that they owned--the Manchester Parkade as well as the Broad Street Parkade--and that purpose was not curtailed by subsequent amendments.
IV
The Continuing Validity of the Cross Easement Agreement as Amended
The parties agree that the May 1966 cross easement agreement was intended to create reciprocal easements appurtenant to the parcels affected by it. Although each party contends that the agreement is clear, they disagree as to its purpose. The town argues that the agreement was intended to facilitate the development of a specific shopping center--the Broad Street Parkade--which was a " commercial unity" in which Broad King, Boulevard, and First Hartford were all participants and which is now defunct. The defendants argue that the agreement was intended more generally to facilitate the development of a commercial center, a purpose that is still capable of being effected.
As explained below, the town is correct that the original purpose of the cross easement agreement was to facilitate the development of a " commercial unity" across all of the cross easement area. At that time, all the parcels were owned and controlled by members of the Ellis and Kaplan families. But the purposes of the parties evolved when the parcels were conveyed to new owners. By an amendment in 1982, the new owners agreed to continue the cross easements on properties that were no longer used for a single purpose. As amended in 1982, the agreement allows the separate operation of the separately owned parcels but reaffirms the cross parking and access rights of the original agreement.
The recitals, the metes and bounds description, and the plan attached to the original cross easement agreement all show that the original parties intended to develop their respective parcels as a single " commercial unity forming a 'shopping center.'" The retail shops would be located on the parcel owned by Neil and Constance, but all the parties agreed that the entire cross easement area, including the First Hartford parcel, was the " shopping center" that they were jointly developing.
But another provision in the original cross easement agreement looked to a future time when successors to the original owners might have different purposes. Paragraph 6 provided that the covenants contained in the agreement would run with the land and enure to the benefit " of the parties hereto, and their successors in title, and to them only, and may only be released, modified, or terminated by mutual consent of the persons or corporations at the time owning all of the aforesaid premises . . ." By this provision, the parties to the agreement recognized that the parcels within the shopping center might be conveyed to other, unrelated parties, who might have different needs. The parties could have included a defeasance provision causing the cross easements to terminate if the shopping center for which they were created ceased to operate or if the parcels came to be owned by parties with different purposes. Instead, they required agreement by all parties owning the property to make any changes to the specific plans delineated by the cross easement agreement.
In 1982, new owners of the parcels amended the cross easement agreement to reflect their changed circumstances. The 1982 amendment is significant for two reasons: first, it effectively dissolves the concept of a " commercial unity" between the new owners of the 17-acre parcel and the new owner of the movie theater parcel, and second, it redefines the parking areas that are subject to the cross easements for parking and access.
The 1982 amendment begins with specific references to the May 1966 agreement and its 1969 amendment. Although its introductory paragraph is convoluted, it may fairly be summarized as follows. The 1966 cross easement agreement identified three areas that were being jointly developed as a " shopping center": Parcel A (Broad-King's parcel), Parcel B (Boulevard's parcel), and Parcel C (First Hartford's parcel), all as shown in the plan attached to the 1966 cross easement agreement. (See Appendix A.) The plan attached to the 1982 amendment redesignated 1966's Parcels A and B as a single new Parcel A and redesignated 1966's Parcel C as Parcel B. (See Appendix B.) In addition to redefining the parcel areas, the 1982 amendment expressly limited the " Shopping Center" to the new Parcel A. That new Parcel A is now the town's 17-acre parcel.
See footnote 27, supra, reproducing Exhibit 16, paragraphs 1 and 2.
After redefining the parcels, however, the parties adopted the " Parcel C" designation from the 1966 cross easement agreement to explain their modifications to the agreement. Broadmanor Associates was defined as the " Parcel C Owner" because it had acquired the parcel designated as Parcel C on the 1966 plan. As used in the 1982 amendment, " Parcel C" is the parcel now subdivided into the two parcels owned by D-1 and L& J.
*Editor's Note: The referenced Appendix B as mentioned in footnote #27, par. 2, has not been reproduced. Note that both the 1966 plan shown in Appendix A and the 1982 plan shown in Appendix B are oriented with the south at the top, unlike the GIS map reproduced above, which is more conventionally oriented with the north at the top.
By limiting the " Shopping Center" to the 17-acre parcel and identifying the parcel with the movie theater as " Parcel C, " the parties to the 1982 amendment indicated that they were no longer operating the parcels as a " commercial unity." They expressly gave " Parcel C" and the " Shopping Center" reciprocal parking and access rights and affirmed that the 1966 cross easement agreement, as modified, remained " in full force and effect."
The town argues, nevertheless, that the purpose for the cross easement has been defeated because the shopping center no longer exists. They ask the court to find that the cross easements have been terminated by these changed circumstances. In support, they rely on 2 Restatement (Third) Property, Servitudes § 7.10, which provides as follows:
(1) When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude. Compensation for resulting harm to the beneficiaries may be awarded as a condition of modifying or terminating the servitude.
The town argues that the cross easements no longer serve any purpose for any party to the agreement. It contends that the cross easements ceased to serve the 17-acre parcel in the early 2000s when the businesses there failed and had no need of parking. It contends that D-1 has ample parking for its own needs on the parcel it acquired from L& J in 2009. Finally, it contends that L& J has no use for the cross easements since it no longer has any tenants on the property, having conveyed the portion of the parcel with its only tenant, the movie theater, to D-1.
The defendants dispute the town's argument. First, they argue that Connecticut law does not recognize the principle expressed in § 7.10, but instead prevents the holder of a servient estate from terminating an easement at will. Second, they dispute the town's claim that the purpose of the cross easements has been frustrated. They claim that the cross easements were generally intended to facilitate commercial development. Because the town still wishes to develop the parcel for commercial purposes, the cross easements will still serve its needs. They observe that they still use their properties as they were used in 1966: D-1 for the movie theater, and L& J to supplement parking for the Manchester Parkade to the north.
The applicable law is not as clear as the parties contend. The town claims that Connecticut law has clearly embraced § 7.10, but no Connecticut court has directly applied it to terminate or modify an express easement. The defendants contend that § 7.10 is inimical to Connecticut law, but the Supreme Court has, in fact, invalidated zoning restrictions that no longer serve a " legal and useful" purpose; Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 151, 763 A.2d 1011 (2001); and it has cited § 7.10 in a remand order, directing a trial court to consider whether a restrictive covenant remained enforceable because it still served " a legal and useful purpose." See Wykeham Rise, LLC v. Federer, supra, 305 Conn. 478-79. Those relatively recent decisions may signal our Supreme Court's receptivity to arguments that, in appropriate circumstances, an express easement may be subject to termination because its underlying purpose is no longer " legal and useful."
In a supplemental brief, the town argues that the Appellate Court's recent decision in Francini v. Goodspeed Airport, LLC, 164 Conn.App. 279, 134 A.3d 1278, cert. granted, 321 Conn. 919, 137 A.3d 764 (2016), settles the issue of the court's authority to apply the principles articulated in the Restatement (Third) of Property, Servitudes. The defendants disagree, arguing that Francini concerns the interpretation of the scope of an easement rather than its termination.
Addressing the most recent point first, the court agrees that Francini does not resolve the issue presented here. In that decision, the Appellate Court reversed a trial court's judgment that an express easement of access to a landlocked parcel could be construed to include an implied easement of necessity to access utility services such as electricity. The Appellate Court relied primarily on the reasoning of earlier Connecticut cases concerning implied easements of necessity and cited to § 2.15 of 1 Restatement (Third) Property, Servitudes, as " further support." Francini is currently pending in the Supreme Court on its grant of certification. Even assuming the Francini decision withstands the Supreme Court's review, it would not affect the outcome here because it does not address termination of an express easement.
Returning to the principal arguments the parties have made, it is not at all clear that Connecticut has recognized or will recognize the " cessation of purpose doctrine" reflected in § 7.10. This section of the Restatement has been criticized in academic circles as promoting an undue interference with property rights. See, e.g., Carol M. Rose, Servitudes, Security, and Assent: Some Comments on Professors French and Reichman, 55 So.Cal.L.Rev. 1403 (1982). In other states, the doctrine has been sparingly invoked in cases where the utility of the easement has been clearly extinguished. For instance, an easement for " try yards" for boiling whale blubber to extract oil was extinguished when the whaling industry disappeared from the area. Makepeace Bros. v. Barnstable, 292 Mass. 518, 198 N.E. 922 (1935). As the authors of one leading treatise observe, however, " [c]ourts are reticent to apply the cessation of purpose doctrine if there is uncertainty as to whether the easement's underlying purpose is still viable. Even when it is clear that the primary purpose for an easement no longer exists, the servitude may not be terminated under the doctrine if it continues to serve a collateral or secondary purpose." J. Bruce and J. Ely, The Law of Easements and Licenses in Land § 10.8, p. 10-19 (2011).
Courts are particularly reluctant to modify or extinguish reciprocal easements such as the ones at issue here when one party asserts that the easements are no longer useful but the other party claims a continuing benefit. In one such case, a Florida appellate court rejected a trial court's careful efforts to modify a reciprocal parking easement to lessen the burden on one of the servient properties. AC Associates v. First National Bank of Florida, 453 So.2d 1121 (Fla.2d DCA 1984). The appellate court observed: " Surely the degree of actual or potential benefit from many property restrictions may vary throughout their durations. Substantial uncertainty for property owners as to rights and obligations would, we believe, result under circumstances like this if courts, at the instance of a suing property owner and over the objection of adjacent property owners, could modify or cancel a commercial (or residential) property restriction on the basis that it is unreasonable by reason of a different type of commercial (or residential) use planned by the suing property owner. This would especially appear to be the case when, as here, the commercial uses of the adjacent property, which is the only other property covered by the restriction, have remained the same. As a general rule, property owners accommodate to property restrictions, not vice versa." Id., 1130.
Even if Connecticut law clearly permitted the termination of express easements that are no longer " legal or useful, " the court is not persuaded that it would be appropriate to do so here. The defendants still use the property as it has been used since the creation of the cross easements, and the cross parking easements remain useful to them for future development. The 17-acre parcel is still zoned for commercial use, and the town hopes to see it redeveloped for mixed-use retail and residential purposes. The town has not met its burden of proving that such a mixed-use development would not benefit from the availability of parking on the defendants' parcels.
The cross easement agreement, as modified in 1982, certainly poses an impediment to the town's redevelopment plan by requiring it to maintain defined parking areas that were designed in 1982 for a use very different from the proposed future uses. It does not, as the defendants contend, prevent the town from building anywhere on the property without the defendants' consent. The town is free to develop portions of the property that were not previously designated as parking areas. It is also free, of course, to continue to negotiate the purchase of 296 Broad Street, to negotiate the reconfiguration or reduction of parking areas, or to pursue condemnation of the cross easement rights if the law permits. It is not appropriate, however, to terminate an express easement agreement that may have continuing utility for future development.
CONCLUSION
The cross easements created in 1966, as modified in 1969 and 1982, remain in full force and effect. Under the terms of the cross easement agreement, as amended, each party must maintain the parking areas that were developed in 1982. The cross easement agreement benefits not only 416 Middle Turnpike West and 296 Broad Street, but also permits the use of the cross easement parking areas by L& J's tenants, tenants' employees, customers, business visitors and other invitees in the Manchester Parkade. The town may redevelop the 17-acre parcel without the defendants' consent so long as the parking areas defined by the 1982 amendment and the subsurface utilities are maintained.