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Lyme Land Conservation Trust, Inc. v. Platner

Supreme Court of Connecticut

May 23, 2017


          Argued February 21, 2017

          Brendon P. Levesque, with whom was Karen L. Dowd, for the appellant (named defendant).

          John F. Pritchard, pro hac vice, with whom were Tracy M. Collins and, on the brief, Edward B. O'Connell, for the appellee (plaintiff).

          Gary W. Hawes, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Jane R. Rosenberg, assistant attorney general, for the appellee (intervening plaintiff).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.


          ROGERS, C. J.

         This case raises the questions of whether a conservation restriction on private property was violated by the owner of that property and, if so, whether the remedies ordered by the trial court were proper. The defendant Beverly Platner[1] appeals from the judgment of the trial court awarding legal and equitable relief to the plaintiff Lyme Land Conservation Trust, Inc., [2] after concluding that the defendant had violated a conservation restriction granted to the plaintiff by a former owner of the defendant's property. The defendant claims that the trial court improperly found violations of the conservation restriction by misinterpreting it and improperly ordered relief that was either legally unauthorized or lacking in evidentiary support. We agree with the trial court's interpretation of the conservation restriction and its consequent finding that the defendant had violated it in multiple respects, and we see no impropriety with respect to the portion of the court's judgment awarding the plaintiff equitable relief. We agree with the defendant, however, that the court's award of punitive damages was noncompliant with the authorizing provision, General Statutes § 52-560a (d), and that its award of attorney's fees, in one respect, was improper. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

         The following facts, which either were found by the trial court or are not disputed, and procedural history are relevant to the appeal. The defendant is the owner of 66 Selden Road in Lyme (property). She purchased the property in May, 2007. By virtue of a ‘‘Declaration of Restrictive Covenants'' (declaration) executed in 1981 by a former owner of the property and recorded in the Lyme land records, substantial portions of the property are protected by a conservation restriction, as defined by General Statutes § 47-42a.[3] The plaintiff is the owner of that conservation restriction.[4] The general purpose of the restriction, as stated in the declaration, is to ‘‘assure retention of the premises predominantly in their natural, scenic or open condition and in agricultural, farming, forest and open space use . . . .''[5]

         The property, which borders on the Connecticut River, Selden Creek and Selden Cove, measures approximately 18.7 acres. It is comprised of a protected area of about 14.3 acres, which is subject to the conservation restriction, and an unprotected area of about 4.4 acres, which is not subject to the conservation restriction. The defendant's house is located on the unprotected area of the property. The protected area of the property includes a large open space to the north and west of the house (meadow) and a smaller forested area to the south of the house (woodlands).

         Fleur Hahne Lawrence, who sold the property to the defendant and, before that, had owned it since 1997, had maintained the meadow by mowing it twice a year, once at the end of July when birds had finished nesting and again around Thanksgiving. A previous owner had agreed to a similar mowing regimen. Lawrence also had four or five trees removed from the woodlands after they had been damaged by beavers, but otherwise did not cut or mow there. Lawrence had employed Novak Brothers Landscaping (Novak) to do landscaping work, but only in the unprotected area around the house. Lawrence's limited activities in the protected area were consistent with the plaintiff's view of the declaration.

         After purchasing the property, the defendant also employed Novak for landscaping work, but she did not contain that work to the unprotected area. Beginning in 2007, and continuing over the next few years, the defendant began mowing the entire meadow area frequently, sometimes twice a week. She also installed an irrigation system in the meadow. The defendant added topsoil to the meadow, aerated it, and hydroseeded and slice seeded it with grass seed typically used for residential lawns. She retained a plant health care contractor who applied lime, fertilizers, fungicides, herbicides and pesticides to the meadow. Ultimately, the grasses previously existing in the meadow were eliminated and replaced with the new grasses planted by the defendant.

         The defendant also planted many ornamental shrubs, plants and flowers throughout the meadow. She created ‘‘tree rings'' to house some of these plantings by removing truckloads of grass and soil from around trees in the meadow. In the woodlands, the defendant engaged in mowing the understory.[6] After obtaining a permit from the Lyme Inland Wetlands Commission, the defendant, over the plaintiff's objections, relocated her driveway. The new driveway, in part, encroached on the protected area. Finally, the defendant spread sand to create an artificial beach in a portion of the protected area that bordered the Connecticut River.

         The plaintiff was aware of the foregoing activities and, for a time, attempted to persuade the defendant that they were not permitted by the declaration. Those efforts were not successful. On October 14, 2009, the plaintiff filed this action, initially seeking a declaratory judgment as to the parties' rights under the declaration. It subsequently amended its complaint to allege actual or intended violations of the declaration. Specifically, in its second amended complaint dated January 15, 2013, the plaintiff averred that the defendant, contrary to the terms of the declaration, had: constructed a driveway in the protected area; cut and thinned the woodlands understory; destroyed existing native grasses and vegetation in the protected area and replaced them with lawn and ornamental landscaping; installed an irrigation system in the protected area; and dumped truck-loads of dirt in the protected area. The plaintiff alleged further that those activities constituted a wilful violation of § 52-560a.[7] It requested as relief, inter alia, an injunction barring the defendant from further violations and requiring restoration of the property to its earlier condition, as well as statutory damages and attorney's fees pursuant to § 52-560a. See General Statutes § 52-560a (c) and (d); see also parts IV and V of this opinion.

         Following a bench trial, the trial court, Hon. Joseph Q. Koletsky, judge trial referee, held that the defendant deliberately had violated the restrictions set forth in the declaration, which were unambiguous, and, further, that she had violated § 52-560a. In the court's view, the defendant had ‘‘destroy[ed]'' the protected area on the property, with the ‘‘intent . . . to incorporate the [protected] area into the [unprotected] area for aesthetic purposes as [she] desired . . . without regard to those restrictions, '' thereby making the protected and unprotected areas ‘‘indistinguishable.'' The court described the defendant's actions of mowing and seeding the meadow until it eventually resembled a lawn, and opined that those ‘‘actions were wilful and caused great damage to the protected area's natural condition, which the defendant was obligated to retain.'' The court further noted the defendant's ‘‘extensive landscaping of all of the protected area, '' which included, for example, the placement of tons of soil and sand, as well as ‘‘huge amounts of fertilizer, '' thereon. As to the woodlands, the court was of the opinion that the defendant had not simply mowed grass, but rather, had ‘‘destroyed considerable [and diverse] vegetation . . . .'' According to the court, the defendant, by selectively reading language in the declaration in isolation to justify her actions, had ‘‘completely subvert[ed] and eviscerate[d] the clear purpose of the conservation restriction.'' Consequently, the court awarded the plaintiff damages of $350, 000 pursuant to § 52-560a (d), as well as attorney's fees of $300, 000.

         The court also ordered injunctive relief, specifically, that the defendant restore the property to the condition that had existed prior to her taking ownership of it. After holding an additional hearing at which various experts testified, the court outlined the particulars of that restoration, which included: cessation of frequent mowing in the meadow and replanting it with small plant ‘‘ ‘plugs' '' or similar devices to restore it to a natural state not requiring chemical fertilizers; removal of the heads from the irrigation system in the meadow to render it nonfunctional; removal of the tree rings; discontinuation of mowing in the woodlands to return them to their earlier, natural condition; and remediation of the artificial beach created by the defendant. After a further hearing at which the parties submitted more specific planting plans, the court ordered the defendant to comply with the plan that had been submitted by the plaintiff. The court also accepted the parties' stipulation regarding a ‘‘land swap'' as a remedy for the encroachment on the protected area by the defendant's relocated driveway, the impropriety of which the court had deemed unquestionable.[8] This appeal followed.[9]


         The defendant claims first that the trial court improperly concluded that she had violated § 52-560a (b), which disallows encroachment on a conservation easement ‘‘without . . . legal authorization, '' because the activities that she undertook in the protected area were authorized by the declaration. She contends that the court misinterpreted and misapplied the terms of the declaration to conclude otherwise. In the defendant's view, the plain language of the declaration did not prohibit her conduct but, to the contrary, expressly permitted it. We do not agree.

         We begin with the standard of review and applicable legal principles. To determine whether the defendant's activities constituted a violation of the conservation restriction and, by extension, a violation of § 52-560a (b), we look to the language of the declaration that created that restriction. Our review of the trial court's construction of that document is plenary. Wykeham Rise, LLC v. Federer, 305 Conn. 448, 457, 52 A.3d 702 (2012). To determine what the declaration allows or disallows, we ‘‘must consider the language and terms of [that] 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.'' (Internal quotation marks omitted.) Id., 456-57.

         At the same time, however, when a restrictive covenant is expressed without ambiguity, it will be given effect according to its terms. Morgenbesser v. Aquarion Water Co. of Connecticut, 276 Conn. 825, 829, 888 A.2d 1078 (2006). ‘‘[C]ontractual terms are to be given their ordinary meaning and when the intention conveyed is clear and unambiguous, there is no room for construction.'' (Internal quotation marks omitted.) Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984).

         The declaration is comprised of an introductory section, which indicates that the declaration is in favor of, and enforceable by, the plaintiff as the grantee, and four enumerated articles. Article I is captioned, ‘‘Restrictions, '' and lists a number of things that are not permitted in the protected area.[10] Article II is captioned, ‘‘Reservations, '' and lists a number of rights that, ‘‘[a]nything in ARTICLE I above to the contrary notwithstanding, the [g]rantor reserves to himself and his heirs and assigns . . . .''[11] (Emphasis added.) Article III contains miscellaneous provisions that, aside from the general purpose of the restriction previously stated; see footnote 5 of this opinion; are not relevant to the question at hand, and article IV concerns amendment of the declaration.

         The defendant argues that the preliminary language to the reservations in the declaration, emphasized in the foregoing paragraph, makes clear that those reservations take precedence over the restrictions; in other words, if an owner of the property is engaged in one of the activities listed in the reservations, it is of no moment that such activity violates one or more of the restrictions. The plaintiff does not dispute this construction, and we agree that the language used and structure of the declaration plainly and unambiguously support it.[12] Additionally, nothing expressly stated in the trial court's memoranda of decision indicates that the trial court reasoned otherwise. Accordingly, to establish that the court improperly allowed the restrictions in the declaration to trump the reservations, the defendant must show that the activities that the court found to be violations, although contrary to the restrictions, nevertheless were encompassed by the reservations. This she has not done.

         To reiterate, the trial court found that the defendant improperly had placed tons of topsoil in the meadow to facilitate the growing of grass and tons of sand in an area along the riverfront to create an artificial beach, and that she improperly had created tree rings in the meadow. These activities clearly violated, respectively, the restriction set forth in § 1.2 of the declaration, which provides in relevant part that ‘‘[n]o soil, loam, peat, sand, gravel, rock or other mineral substance . . . will be placed, stored or permitted to remain'' upon the protected area, and that set forth in § 1.3 of the declaration, which provides that ‘‘[n]o soil, loam, peat, sand, gravel, rock, mineral substance or other earth product or material shall be excavated or removed'' from the protected area. (Emphasis added.) The court found further that the defendant had engaged in extensive mowing and seeding in the meadow, accompanied by the installation of an irrigation system and application of huge amounts of fertilizer, in order to eliminate the existing meadow grasses and replace them with a residential type lawn similar to that in the unprotected area.[13] These activities clearly violated the restriction set forth in § 1.4 of the declaration, which provides that ‘‘[n]o trees, grasses or other vegetation thereon shall be cleared or otherwise destroyed.'' (Emphasis added.) As to the woodlands, the court concluded that the defendant had destroyed considerable and diverse vegetation in the understory.[14] This activity clearly ran afoul of the proscription in § 1.4 against the destruction of vegetation, as well as of the restriction set forth in § 1.7 of the declaration, which requires, with an exception not applicable here, that ‘‘all woodland [in the protected area] shall be kept in a state of natural wilderness.'' Finally, there is no dispute that the defendant's relocation of her driveway over a portion of the protected area is contrary to the restriction set forth in § 1.1 of the declaration, which bars the placement of various temporary or permanent structures in the protected area.

         The question remains whether the foregoing activities were, nevertheless, permitted by an article II reservation. The trial court acknowledged the only arguably applicable one, set forth in § 2.2 of the declaration, and opined, in short, that the defendant had focused myopically, and unjustifiably, on one phrase therein to defend the bulk of her activities in the protected area. Section 2.2 provides that, notwithstanding the restrictions of article I, the defendant retains the right ‘‘[t]o conduct and engage in the cultivation and harvesting of crops, flowers and hay; the planting of trees and shrubs and the mowing of grass; the grazing of livestock; and the construction and maintenance of fences necessary in connection therewith.'' (Emphasis added.) As indicated, the phrase on which the defendant had focused, and continues to focus, is ‘‘mowing of grass.'' As should be obvious, and as the trial court concluded, the defendant's activities in the protected area went well beyond the ‘‘mowing of grass.'' Had the defendant simply mowed grass, there might be, as the trial court allowed, a valid claim that she had not knowingly violated the declaration. Instead, however, the defendant's mowing in the meadow was incidental to another activity that most assuredly was not permitted by § 2.2 or any other reservation, namely, the installation of a residential lawn. And, as the trial court found, her mowing in the woodlands was not limited to grass, as permitted by the reservations, but rather, extended to the larger plant life existing in the understory. As to the defendant's other activities that clearly violated the restrictions-the encroaching driveway and the placement of sand and topsoil-the defendant does not even attempt to explain how they are saved by the reservations.[15]

         The defendant contends additionally that the trial court improperly added restrictions that were not stated expressly in the declaration. In the defendant's view, because the declaration did not explicitly disallow fertilizing, planting new grass or irrigation, she did not violate it by engaging in those activities. This argument is meritless. First, all of the cited activities were improper because they were intended to destroy, and in fact did destroy, the grasses and other vegetation in the protected area in violation of § 1.4 of the restrictions. See footnote 10 of this opinion. It is irrelevant that the methods of destruction were not described with particularity in the declaration, as the destruction itself clearly was prohibited. Second, none of those activities are allowed, nevertheless, due to their inclusion in §§ 2.1 through 2.4 of the reservations, which detail particular rights that are retained for the property's owner. See footnote 11 of this opinion. Finally, as to additional rights that are not explicitly reserved, the final reservation set forth in § 2.5 of the declaration makes abundantly clear that the owner may ‘‘continue the use of the [p]rotected [a]reas for all purposes not inconsistent with the restrictions set forth in ARTICLE I above.'' (Emphasis added.) Because the cited activities were wholly inconsistent with the prohibition on the destruction of grass and other vegetation, they are not saved by § 2.5. For the foregoing reasons, the defendant's claim that the trial court improperly interpreted and applied the terms of the declaration fails.


         The defendant claims next that the trial court lacked authority to order a restoration plan as part of its award of relief. According to the defendant, neither the declaration nor General Statutes § 47-42c or § 52-560a provides a basis for the court's remedy. In the defendant's view, the court's only option was to order that the property be returned to the precise condition it was in prior to her violations of the declaration, which included the presence of invasive, nonnative species, whereas the plan approved by the court aimed to recreate more natural conditions generally and omitted such species. We are not persuaded.

         As previously explained, our review of the trial court's construction of the declaration is plenary; see Wykeham Rise, LLC v. Federer, supra, 305 Conn. 457; as is our review of the court's interpretation of a statute. Santorso v. Bristol Hospital, 308 Conn. 338, 355, 63 A.3d 940 (2013). In interpreting a statute, we are guided by the strictures of General Statutes § 1-2z.[16]

         There are three potential sources for the court's authority to order the relief that it did. Section 3.5 of the declaration provides in relevant part ‘‘that a breach of this covenant in respect of any restriction herein set forth may be enforced by the [plaintiff] by injunctive relief . . . .'' (Emphasis added.) Similarly, § 47-42c provides in relevant part that conservation restrictions ‘‘may be enforced by injunction or proceedings in equity. . . .'' (Emphasis added.) Finally, ยง 52-560a (c), which authorizes actions by holders of conservation easements against parties who encroach on those easements, provides in relevant part that, if the ...

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