Opinion
No. CV03 040 47 38 S
May 5, 2004
MEMORANDUM OF DECISION DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The named plaintiff is a unit owner in the named defendant, the Northbrook Condominium Association. He brought this action challenging the defendant's rule that dog leashes shall not exceed 20 feet in length. The plaintiff asserts that the 20-foot limitation is an invalid condominium declaration amendment that cannot be enforced. The defendant has filed a motion for summary judgment wherein it alleges that the leash restriction is merely a clarification of the defendant's long standing pet policy. The plaintiff filed a responsive motion for summary judgment wherein he argued that the defendant's Board of Directors illegally amended the condominium association declaration.
At issue is Article 9 of the condominium association bylaws. That provision governs property use and restrictions. Article 9(e) of the declarations provides in part:
[D]ogs, cats or other household pets not to exceed one per unit may be kept in the units subject to the rules and regulations to be adopted by the Board of Directors . . . All such dogs, cats or household pets shall be restrained by leash or other comparable means and shall be accompanied by an owner at all times.
In the past the plaintiff exercised his pet in "secluded" space within the condominium confines. On June 27, 2003, after multiple dog-related incidents, the defendant's Board of Directors voted to adopt a clarification of Article 9(e), the above association pet policy. The clarification provided "[leashes] or comparable restraints for dogs, cats or other household pets shall not exceed 20 feet in length." Thereafter the unit owners, including the plaintiff, were notified by letter of the clarification. As a result of the clarification, the plaintiff is no longer allowed to use a seventy-five foot leash while exercising and playing with his dog. This action followed.
The matter has come before the court in the form of a motion for summary judgment. Connecticut Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Connecticut Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
The defendant argues that it merely clarified an existing rule. The plaintiff counters that the Board of Directors are attempting to enforce an invalid amendment. This central issue has been before the court once, in the form of an application for temporary injunction [ 35 Conn. L. Rptr. 664]. At that time the trial, court, Rush, J., noted:
In Meadow Bridge Condominium v. Bosca, 187 Mich. App. 280, 466 N.W.2d 303 (1990), the court noted, at page 281," that a rule or regulation is a tool to implement or manage existing structural law, while an amendment presumptebly changes existing structural law." In Beechwood Villas Condominium v. Poor, 448 So.2d 143 (Fla.App.), the court adopted, at p. 1144, the following test "provided that a board enacted rule does not contravene either an express provision of the declaration or a right reasonably inferable therefrom, it will be found valid, within the board's authority."
In the present case the condominium bylaws do not define the words "restrained" and "leash." Consequently, the defendant utilized Article 9(1) of the association declaration which provides:
The Board of Directors shall have the power to make such regulations as may be necessary to carry out the intent of these use restrictions.
As noted by Judge Rush, "the enactment of the 20-foot provision is certainly not inconsistent with the use of the word `restrained' in the declarations and appears to the court to be implementing the intent contained in the declarations that animals be `restrained' animals."
Furthermore, the defendant association acted prudently when it enacted subject clarification. Connecticut General Statutes 47-244 allows the defendant association to "regulate any occupancy of a unit which . . . affects the use and enjoyment of other units or the common elements by other unit owners." Regulation of a pet restraint is as important as all other rules concerning the pet. See Brundrige v. Howes, 259 A.2d 895, 686 N.Y.S.2d 530 (1999) (because a long leash allowed the dog access to an alleyway, the pet might not be restrained in a reasonable manner); Hawkins v. Leach, 143 A.2d 689, 88 R.I. 98, 102 (1958) (the length of a leash might be more hazardous than the tethered pet); Fedick v. Fenton, 166 Misc. 707, 708, 2 N.Y.S.2d 436 (1938) (same). An uncontrolled leash is a potential source of harm. See Sedlak v. Neville, No. CV98 0167678 (December 21, 1999, Chase, J.) (plaintiff's finger traumatically amputated when leash on her dog became entangled on her finger).
"Central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property." (Internal quotations omitted; citations omitted.) Noble v. Murphy, 34 Mass. App. 452, 456, 612 N.E.2d 266 (1993). This court should recognize reasonable pet restrictions. See Villa de las Palmas Homeowners v. Terifaj, 99 Cal.App.4th 1202, 1208-09, 121 Cal.Rptr.2d 803 (2002).
Although the plaintiff argues that the defendant association did more than merely clarify its existing declaration, the record does not support that position. The association's declaration includes a pet restriction. Plaintiff had constructive knowledge of that restriction. The definition of "restraint" and "leash" was within the defendant's authority and, indeed, duty.
The plaintiff's motion for summary judgment is denied.
The defendant's motion for summary judgment is granted.
DEWEY, J.