Opinion
No. CV 02 0192800
June 19, 2003
MEMORANDUM OF DECISION
This case involves the question of whether an injunction should issue to enforce restrictive covenants. The plaintiffs, John A. Yazanko and Debra A. Yazanko, who reside at 12 Deerwood Court in Norwalk, in a subdivision known as "Deerwood," seek a permanent injunction prohibitihg the defendants, Richard N. Granata and Elaine Granata, who reside at 40 Deerwood Manor in the same subdivision, and whose property is adjacent to that of the plaintiffs, from subdividing their property into two lots and building a home on the new lot.
The evidence submitted at the trial indicates that Deerwood consists of 23 lots, and is shown on Map #2586, recorded in the Norwalk Land Records in April of 1947. The plaintiffs purchased lot #17 on said map on September 22, 1995. The defendants are the owners of lot #13, which they bought in 1966. Both of these lots, as well as the remaining 21 other lots, are subject to the same restriction set forth in a deed of lot #13, the defendants' property, from Arthur Olson, Incorporated, to William J. Sculley and Grace M. Sculley, dated November 11, 1947, and recorded in the Norwalk Land Records in volume 325, page 668. The restriction involved in this case provides that: "Only one single family dwelling shall be erected on said premises . . ." This clearly indicates that only one house can be built on lot #13, the defendants' property. Moreover, the deed by which the defendants took title, which is recorded in the Norwalk Land Records in volume 669, page 46, states that the premises are conveyed subject to "restrictions contained in deed recorded in Volume 325 at Page 668."
The restrictions in their entirety read as follows: "The premises are conveyed subject also to the following restrictive covenants and agreements which shall run with the land and shall be binding upon the Grantees herein, their heirs and assigns, and shall enure to the benefit of the grantor herein, its successors and assigns, to wit: 1. Said premises shall be used for strictly private residential purposes only. 2. Only one single family dwelling shall be erected on said premises of a traditional type of New England architecture, together with the customary outbuildings appropriate to said dwelling; and the initial cost of said dwelling shall be not less than $12,000."
The defendants, however, applied to the Norwalk Planning Commission (Commission) in August 2002 for a "resubdivision" of their lot #13, which totals over 71,000 square feet, and is located in the A residence zone, which requires a minimum of 12,500 square feet per lot. The proposed subdivision would divide lot #13 into two separate parcels, "13-B" and "13-A." 13-B, on which the present home is located, would contain 30,888 square feet, and the other lot would have 40,447 square feet. This proposed subdivision of lot #13 by the defendants was granted by the Commission on October 8, 2002, and no appeal was taken therefrom. The Commission, however, noted that it had been advised of a restrictive covenant prohibiting more than one home on a lot, but stated that it operated strictly on a zoning basis and did not concern itself with private restrictive agreements.
The Commission stated in approving the resubdivision of Lot #13 that: "A neighbor has raised a point that the subdivision should not be granted because it would violate deed restrictions on the property that prohibit additional home construction in that vicinity. By way of reminder, the planning commission has historically not commented on private deed restrictions and determine only whether the proposed lots comply with the subdivision regulations and the zoning regulations."
Although the defendants claim that the new lot does not violate any restriction because it could remain as "open space," or could be "added to another lot in the subdivision," the defendants also took definite steps to market the new lot #13-A by listing it with Paul Curry of Prudential Realty on East Avenue in Norwalk as capable of being subdivided into two buildable lots.
The enforcement of restrictive covenants was discussed in Contegni v. Payne, 18 Conn. App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989), which described one class of restrictions as "uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme." Id., 51. The Appellate Court also stated that a uniform plan may be inferred from: "(1) the common grantor's selling or stating an intention to sell an entire tract of land, (2) the common grantor's exhibiting a map or plot of the entire tract at the time of the sale of one of the parcels, (3) the actual development of the tract in accordance with the restrictions, and (4) a substantial uniformity in the restrictions imposed in the deeds executed by the common grantor." All of these factors exist in the present case and it is therefore concluded that the 23 lots of Deerwood are subject to a general or uniform development plan or scheme.
Moreover, any grantee may enforce the restrictions against any other grantee. Mannweiler v. LaFlamme, 46 Conn. App. 525, 535, 700 A.2d 57, cert. denied, 243 Conn. 934, 702 A.2d 641 (1997). This equitable right "springs from the presumption that each purchaser has paid a premium for the property in reliance on the uniform development plan being carried out." Id., 535-36. An owner has a legal right to enforce the terms of the covenants where there is a general plan of development. Contegni v. Payne, supra, 18 Conn. App. 52; Maganini v. Hodgson, 138 Conn. 188, 193-94, 82 A.2d 801 (1951).
See also Mannweiler v. LaFlamme, 65 Conn. App. 26, 781 A.2d 497 (2001), on remand.
The defendants offer a number of reasons why they are entitled to subdivide their property to permit a second home to be constructed, including a special defense that the restrictions pertaining to this subdivision were no longer enforceable because of "a change in circumstances" occasioned by the alleged use of other properties in the subdivision for purposes other than strictly residential use.
A change in circumstances where events transpire that were not contemplated by the declarant may justify the nonenforcement of restrictive covenants. Shippan Point Association, Inc. v. McManus, 34 Conn. App. 209, 215, 641 A.2d 144 (1994). "The test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved." Id.
The defendants testified they believed that four of the lots in Deerwood were being used for commercial purposes, i.e., home occupations, but agreed that there were no signs or other indications of commercial use, nor was there any further specific proof offered by the defendants of such violations. In any event, even if four of the homeowners were actually carrying on some form of commercial enterprise, that would not permit the defendants to build two houses on lot #13 in violation of the restrictive covenant. There is clearly no widespread rejection or disobedience of the restrictive covenant at issue in this case. The court finds no abandonment of the restrictions such that there no longer exists any benefit to permitting only one house per lot. No other property owner in the subdivision has sought to resubdivide his or her lot.
Mr. Granata mentioned a car phone business, massage, septic tank and picture framing.
The defendants also argue that the subdivision approved by the Norwalk Commission means that they now have two separate legal lots, each of which may have a house constructed thereon without violation of the covenants. The Commission noted, however, as pointed out in footnote 2 above, that it was not basing its decision on the presence or lack of private restrictions, and it is not plausible or logical that the defendants can circumvent the restrictions in their deed by applying to the municipal authorities for a subdivision of their lot.
Another reason offered by the defendants in opposition to the issuance of an injunction is that their lot of 71,335 square feet, 1.63 acres, has many more square feet than the zone requires and is much larger than other lots in the subdivision. The plaintiffs' property, for example, contains about 14,000 square feet. This argument is not persuasive because the defendants purchased Lot #13 knowing that it was subject to the restriction of one house per lot and admitted so during the trial.
Moreover, even though it would be obviously profitable to sell the newly created lot as buildable, when a restrictive covenant is violated the plaintiffs are entitled to have the provisions enforced "even though the wrongdoer would thereby suffer great loss." Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984). The defendants should not obtain a benefit from their own violation of a clear covenant. Id.
As far as the remedy is concerned, a permanent injunction is warranted when the terms of a restrictive covenant have specified and expressly defined meanings, and, if that is the case, such particularized meanings and definitions will control. Southbury Land Trust v. Andricovich, 59 Conn. App. 785, 789, 757 A.2d 263 (2000). Furthermore, it should, be noted that restrictive covenants are enforceable by injunction without the need to prove irreparable harm. Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977).
This exception to the usual requirement of showing irreparable injury before injunctive relief will issue does not mean, however, that a court should ignore the equities involved. An injunction is an equitable remedy and, when confronted with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless enforcement would be inequitable. Castonguay v. Plourde, 46 Conn. App. 251, 268, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). The court concludes that it is neither inequitable nor disproportionate, under the facts of this case, to require that the defendants comply with the restrictive covenants.
The granting of an injunction in a case such as this is discretionary and "in exercising that discretion, the court . . . may consider and balance the injury complained of with that which will result from interference by injunction." Castonguay v. Plourde, supra, 46 Conn. 267 (1997). The court is satisfied that the plaintiffs have met their burden of proof and are therefore entitled to the injunction they seek against the defendants' intended actions, which the court finds to be a violation of the aforesaid deeds and covenants.
The defendants correctly point out, however, that the restriction does not as such prohibit subdividing a lot, but only prohibits building a second house on a lot. Although the only logical reason for resubdividing is to obtain a buildable lot for sale, it does not appear that technically the defendants can be enjoined from selling off a portion of their original lot, but they can and are hereby enjoined from selling or attempting to sell or transfer their newly created lot as a buildable lot.
So Ordered.
Dated at Stamford, Connecticut, this 19th day of June 2003.
William B. Lewis, Judge (TR)