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Grovenburg v. Rustle Meadow Associates, LLC

Court of Appeals of Connecticut

June 20, 2017


          Argued Date: January 18, 2017

         Appeal from Superior Court, judicial district of Hartford, Hon. Richard M. Rittenband, judge trial referee.

          Barbara M. Schellenberg, with whom was Ari J. Hoffman, for the appellants (defendants).

          Jared M. Alfin, for the appellees (plaintiffs).

          DiPentima, C. J., and Prescott and Gold, Js.


          DiPENTIMA, C. J.

          In this appeal, we address the contours of judicial review in cases in which a discretionary determination of a common interest ownership association is challenged. The defendants, Rustle Meadow Associates, LLC (company), Rustle Meadow Homeowners Association, Inc. (association), and its president, Jeffrey D. Miller, appeal from the judgment of the trial court in favor of the plaintiffs, Duane Grovenburg and Kristine Grovenburg. The defendants' principal contention is that the court improperly set aside the association's discretionary determination regarding the plaintiffs' request to erect a fence on their property. Specifically, they claim that the court failed to apply the proper legal standard governing review of such determinations, as established by our Supreme Court in Weldy v. Northbrook Condominium Assn., Inc., 279 Conn. 728, 904 A.2d 188 (2006). The defendants also claim that the court improperly rejected the substance of their counterclaim, that it improperly invalidated a special assessment levied by the association, and that it abused its discretion in awarding the plaintiffs $72, 718.25 in attorney's fees. We affirm in part and reverse in part the judgment of the trial court.

         The relevant facts are gleaned from the court's memorandum of decision and the undisputed evidence in the record before us. Rustle Meadow is a planned community[1] created pursuant to the Common Interest Ownership Act (act), General Statutes § 47-200 et seq.[2]Consistent with the strictures of that act, the Declaration of Rustle Meadow (declaration) was recorded on the Canton land records in January, 2006. See General Statutes § 47-220 (a) (common interest community may be created ‘‘only by recording a declaration executed in the same manner as a deed''); Peck v. Milford Hunt Homeowners Assn., Inc., 110 Conn.App. 88, 95, 953 A.2d 951 (2008) (‘‘a common interest community does not come into existence until the declaration is filed in the land records''). The company is identified as the declarant in that document.

         Approval of the development of Rustle Meadow by the Canton Planning Commission was conditioned on, inter alia, the dedication of an eight acre portion of the property to ‘‘open space.'' In accordance therewith, the company granted ‘‘a perpetual conservation restriction and easement'' (conservation easement) to the town of Canton. Among the covenants agreed to by the company were that ‘‘the [c]onservation [a]rea shall be maintained in its present condition, and no topographic changes shall be made, '' and that ‘‘there shall be no removal, destruction or cutting of trees, shrubs or plants'' in the conservation area. That conservation easement is memorialized in both the ‘‘Description of Land Being Declared'' and an A-2 survey appended to the declaration (declaration survey).[3]

         Rustle Meadow is described in the public offering statement[4] admitted into evidence as a ‘‘common interest equestrian community'' that features ‘‘the use of a premier barn, outdoor arena, indoor arena (if built), acres of pasture, acres of open space, a gorgeous stream, and walking and riding trails . . . .'' Miller is the sole member of the company, which developed Rustle Meadow, and has remained the owner of five of its seven units. Rustle Meadow is governed by the association, upon which the declaration confers various powers and responsibilities.[5] The association, in turn, acts through its executive board (board), as recognized in both the declaration and the association's bylaws. At all relevant times, the board was comprised of Miller, his wife, Linda Welles, and his sister, Pam Claywell.[6]

         Welles owns one unit in Rustle Meadow, known as ‘‘Unit 4, '' where she and Miller reside. On August 11, 2006, the plaintiffs purchased an abutting property, which the statutory warranty deed (deed) describes as ‘‘Unit No. 3 of Rustle Meadow.'' That deed provides in relevant part that ‘‘[s]aid real property is conveyed together with and subject to the terms, conditions, agreements, obligations and easements contained in the [d]eclaration . . . . The [g]rantee, by acceptance of this deed, agrees to become a member of [the association] and to abide by the Certificate of Incorporation, Bylaws, Rules and other regulations of the [a]ssociation.'' Section 21.1 of Article XXI of the declaration likewise provides that ‘‘[t]he acceptance of a deed or the exercise of any incident of ownership . . . of a Unit constitutes agreement that the provisions of the Documents are accepted and ratified by such Unit Owner . . . and all such provisions recorded on the Land Records of the Town of Canton are covenants running with the land and shall bind any Persons having at any time any interest or estate in such Unit.'' At trial, the plaintiffs testified that they reviewed the declaration individually and with their attorney prior to purchasing the property, and were aware of the restrictive covenants contained therein.[7]

         Various exhibits admitted into evidence, including the declaration survey, indicate that the plaintiffs' unit is 1.76 acres in size and narrow in shape.[8] Their unit is bordered to the west by land designated as ‘‘Open Space'' and subject to the conservation easement. Those exhibits also indicate that a northeasterly portion of the plaintiffs' parcel is subject to a ‘‘pasture easement''[9] for which development rights to create common elements of Rustle Meadow were reserved by the company.[10]

         Article X of the declaration sets forth various restrictions on the units in Rustle Meadow. Pertinent to this appeal is § 10.1 (k). Titled ‘‘Approval of Building and Landscaping Plans, '' it provides in relevant part: ‘‘No building, shed, swimming pool, pavement, fence, wall or other structure or improvement of any nature shall be erected upon any Unit in the Common Interest Community without the prior written consent of the Declarant . . . . No Unit Owner shall make any exterior addition, change or alteration to a Unit or any residence located therein . . . or substantially change the topography of a Unit including the removal of any trees without the prior written consent of the Declarant which consent shall not be unreasonably withheld. Detailed plans of any such construction or landscaping or any addition, change or alteration thereto shall be submitted to the Declarant . . . . The Unit Owner must receive written approval from the Declarant prior to commencing such construction, landscaping or making any additions, changes or alterations. Any unauthorized construction or changes must be restored to its previous condition at such Unit Owner's expense.'' Section 13.1 (a) (ii) of Article XIII, which addresses ‘‘Additions, Alterations and Improvements by Unit Owners, '' similarly provides in relevant part that a unit owner ‘‘[m]ay not make any changes, additions, alterations, or improvements to any structure in or on any Unit . . . or make any substantial change to the topography of a Unit . . . including the removal of trees, without the prior written approval . . . as provided in Section 10.1 (k) of this Declaration . . . . Such approval by . . . the [a]ssociation shall not be unreasonably withheld.''

         During construction of their residence, the plaintiffs requested approval to install an in-ground swimming pool on their property.[11] The declarant granted that request, and the pool was completed in the fall of 2008. An ‘‘as-built'' survey, which was admitted into evidence, indicates that the pool is located behind the plaintiffs' residence to the south. At its closest point, the pool measures 24.2 feet from the southeasterly side yard property line.

         In December, 2009, the plaintiffs received written notice from the Canton building official that ‘‘[t]he pool is in violation because it is not properly fenced as required by [the] Connecticut State Building Code.'' The plaintiffs thereafter submitted to Miller a written proposal to install a fence around the pool.[12] The fencing proposed by the plaintiffs would border ‘‘Unit 2'' to the southeast, and not Welles' ‘‘Unit 4'' property to the northwest. In that June 23, 2010 e-mail, the plaintiffs invoked §§ 10.1 (k) and 13.1 (a) (ii), stating that ‘‘[a]pproval is expected as soon as possible and per the [declaration] ‘shall not be unreasonably withheld.' '' They further advised that ‘‘any problems, issues, etc. should be submitted to our attorney with a copy to us. He will then contact your legal counsel to resolve.'' Miller responded two days later on behalf of the association and requested further information on the proposal.[13] Hours later, the plaintiffs sent Miller another e-mail, in which they largely disagreed with the need for further information. In that communication, the plaintiffs also asked Miller to ‘‘provide us with the appropriate sections in the declaration, [association] rules, or our lot purchase agreement [and] the exact sections that define the green zone.'' See footnote 13 of this opinion.

         On July 2, 2010, Miller again responded to the plaintiffs via e-mail and elaborated on his request for further information. In particular, he stated that ‘‘[t]he reason for the scale drawing is to ascertain where the fence is on the property, most importantly in relation to the green zone. Markings on the ground are not sufficient as they can be erased or damaged in the construction process. Then there is no way to agree post construction on where the fence should have been installed. Accurate measurements from known immovable points are needed, and then the approved location is well known and reproducible.'' With respect to the plaintiffs' query about the ‘‘green zone, '' Miller stated that ‘‘[§] 10.1 (k) of the declaration is very clear on landscaping changes requiring approval. The green zone has been established by the association, and was discussed with you prior to purchasing [Unit 3] and clearing the lot. All of the trees cut on both sides of the house . . . are those that were outside of the green zone, all the trees and shrubs inside the green zone were not cut. Numerous discussions took place where you acknowledged the green zone. The green zone falls within the authority of the board in approving landscape changes after construction. The ‘green zone' is simply a term which names a section of the land adjacent to the wooded property lines where the association will tightly regulate any landscape changes to maximize the visual buffer between adjacent lots. You have already done unapproved landscaping on your unit that affects this visual buffer. Any landscaping approval by the board will include consideration of maintaining the integrity of the green zone.'' In a subsequent e-mail sent ten days later, Miller advised the plaintiffs that ‘‘[t]he pool fence will most likely not be approved any closer than fifteen feet to the property line. Maintaining a visual buffer between lots in this community is a reasonable criteri[on] from which to make a decision . . . . The language in [§] 10.1 [k] says ‘consent shall not be unreasonably withheld'. A visual buffer is a common community practice, is seen as an asset to a community, and is widely used by both town planning commissions and common interest communities. The board feels this is an entirely reasonable criteri[on] on which to base landscaping decisions.''

         Days later, the plaintiffs submitted certain revisions to their fence proposal that included a brochure of the proposed fence material and a drawing with what they termed ‘‘clear permanent points of measurement'' for the fence's proposed location. That drawing indicated that the fence would be 8.5 feet from the southeasterly property line, which borders ‘‘Unit 2'' of Rustle Meadow.

         In their correspondence, the plaintiffs also stated that ‘‘[t]he [d]eclaration, lot purchase agreement, construction contract, all of the written agreements we have for our home do not mention or stipulate a ‘green zone' or a ‘[fifteen] foot' requirement or any other foot requirement. Therefore they are not relevant to the approval of the type of fence we have requested to install. We have a property line which is noted on the drawing. Any requirement to a ‘green zone' that does not exist in the lot plans or declaration is inappropriate and unreasonable.'' They further indicated that the proposed fence complied with town regulations. The plaintiffs then requested a decision on their proposal in writing by the board.

         Miller furnished the decision of the board in a July 23, 2010 e-mail to the plaintiffs. In that decision, Miller reiterated that ‘‘a proper scale drawing is needed.'' He then stated that ‘‘[a]s the proposed fence appears to fall well within the [fifteen] foot visual buffer we call the green zone . . . the fence as drawn is not approved. . . . The board would likely approve a black Echelon fence that is on or adjacent to the patio edge (on the east side), and encourages you to submit a drawing proposing that. . . . If you prefer to locate the fence as close to the [g]reen [z]one line as possible, the board will require a fence maintenance plan for any section of fence that lies within [three] feet of the green zone, or within [eighteen] feet of the property line. . . . In addition, if the proposed fence is within 1.5 feet of the green zone the board will require that the line be surveyed, as the flagging currently in use is only an approximation. Whether or not you can find the term ‘green zone' in the declaration does not affect the authority of the board to determine what are acceptable landscaping changes to take place in the community. Authority comes from [§] 10.1 (k) of the declaration that outlines the landscape review process. . . . The [fifteen] foot visual buffer green zone is something that is already in place, and was previously acknowledged by you. The board has every intention of keeping it in place. Continuing to state that the board's landscaping review criteria are inappropriate and quoting town zoning [requirements are] not responsive to the board's request. The town's requirements are in addition to, but are not the only requirements in a planned community like Rustle Meadow. Please submit a pool fence construction plan and an accurate scale drawing that adequately respects the [fifteen] foot visual buffer green zone if you would like it to be considered.''

         Sixteen months later, Miller sent the plaintiffs an e-mail dated December 2, 2011, in which he noted that it had ‘‘been months since we heard from [you] on submitting a suitable location for the pool fence'' and cautioned that ‘‘[t]he association can no longer tolerate this safety risk, and will be writing a letter to the town asking for enforcement.'' Miller subsequently contacted the Canton building department and informed it that ‘‘[t]here has been no pool fence'' on the plaintiffs' property ‘‘since the pool was completed in 2008.'' Miller also stated that fencing previously proposed to the association by the plaintiffs ‘‘placed the fence unnecessarily within a [fifteen] foot visual buffer zone along the property line. The board denied the fence location on that basis, and encouraged a fence proposal that was outside of the [fifteen] foot buffer. . . . The entire summer and fall of 2011 has passed with no new proposal. . . . [A] temporary garden wire type fence has been put up. While this is better than nothing, the board is concerned that this dangerous situation is not being rectified . . . . While we understand winter weather might not allow an immediate correction, we would hope that an acceptable plan could be submitted to this board before spring, and construction could begin when weather allows.'' The building department thereafter sent the plaintiffs a certified letter that requested ‘‘[y]our compliance in addressing this serious violation . . . .''

         In the spring of 2012, Attorney Louis N. George submitted a revised fence proposal on behalf of the plaintiffs. That submission states in relevant part: ‘‘Attached are the plans for the fence and where it will be located. Town regulations allow the fence to be placed at the boundary line. There are no [a]ssociation regulations limiting the location of the fence. Our clients are, however, intending to place the fence approximately eight feet from the boundary. Hopefully you will embrace this compromise. The fence design is one that you had already stated would be fine. Please let us know if this is acceptable.'' Included in that submission was an updated depiction of the proposed fence location, which the plaintiffs sketched onto a copy of the ‘‘as-built'' survey of the pool. In the eight foot section between the proposed fence and the southeasterly properly line, the plaintiffs indicated that ‘‘[b]amboo type shrubs to be placed every [six-eight] feet . . . . Nursery indicated this type of shrub would grow in this wet, shaded area. These shrubs along with existing vegetation on side yard will provide more than sufficient coverage.'' In response, the board requested ‘‘details regarding the species and mature height of the bamboo and a scale drawing of the plan . . . .'' Several months passed as discussions continued between the parties.

         At the time of the association's June 21, 2013 annual meeting, both the plaintiffs and the association were represented by legal counsel. The minutes of that meeting state in relevant part that ‘‘[d]iscussion was held regarding the visual buffer area between units that the board calls the green zone. The [plaintiffs] stated that there is no specific boundary in the documents to restrict activity. [Miller] stated that the [plaintiffs] had acknowledged in writing the need to maintain a visual green zone buffer between units for privacy and to maintain the wooded character of the community. The board noted that the standard buffer is [twenty feet] but that the [plaintiffs] were given a concession for [fifteen feet] because they have the narrowest lot.'' The minutes reflect that the plaintiffs had submitted a revised pool fence proposal, but had not yet responded to the board's request for additional information. The minutes further indicate that the plaintiffs ‘‘agreed to provide the details on the pool fence plantings requested by the board and to submit a proposal for creation of an undisturbed visual buffer area, '' which the board ‘‘agreed to review . . . when provided and respond within [two] weeks.''

         By letter dated July 9, 2013, George responded to the board's request for further information on behalf of the plaintiffs. With respect to the proposed plantings, George stated that ‘‘Scabrida Clumping Bamboo'' would be installed ‘‘between the side yard fencing and the property line on the [southwesterly] side of the house with the vacant lot, as noted on the drawing.'' He also explained that ‘‘[t]he bamboo grows [twelve-fourteen feet] tall by [three feet] wide for each bush'' and that this species ‘‘is non-invasive, vigorous and easy to grow . . . .'' As to the buffer area between Units 3 and 4, George indicated that the plaintiffs ‘‘would be glad to agree to continue adding shrubs and ground cover to this area in the future.'' Months passed without any formal response or action by the board. Nevertheless, discussions between the parties' respective attorneys continued in an attempt to reach an agreement. It is undisputed that, at some point in the fall of 2013, counsel for the association withdrew his representation due to a personal matter.

         The plaintiffs commenced this civil action in December, 2013. At that time, the association had not rendered a decision on the plaintiffs' pending proposal.[14] The operative complaint dated April 17, 2014, contains three counts. The first count set forth a cause of action under the act; see General Statutes § 47-278 (a);[15] and alleged, inter alia, that the defendants ‘‘failed to approve [the fence proposal] even though all the requirements were met'' and ‘‘unreasonably'' denied that proposal and ‘‘conditioned the Association's approval of the fence on . . . compliance with the fictional Green Zone.'' The first count also alleged that the defendants improperly issued certain fines against the plaintiffs ‘‘for violating a fifteen (15) foot visual buffer area between [their] property and Miller's home (the ‘Green Zone').'' The second count alleged a breach of fiduciary duty on the part of the defendants. The third and final count sought the appointment of a receiver for the association pursuant to General Statutes § 52-504.[16]

         In their prayer for relief, the plaintiffs sought ‘‘[1] monetary damages; [2] interest; [3] costs of suit; [4] appointment of a receiver to manage and operate the [a]ssociation as a matter of equity pursuant to [§] 52-504; [5] an injunction prohibiting [Miller] from assigning his rights or powers as the owner of [the company] or as the president of the association to his wife, heirs, successors, assigns and/or family members [from] holding a position on the [board] or participating in any voting concerning the association, as well as any and all relief requested in [the plaintiffs'] application for an injunction, which is incorporated herein by reference;[17][6] an injunction ordering the association to permit the plaintiffs to erect a fence around their swimming pool in accordance with the Town of Canton's rules and/or regulations; [7] an order that there is no ‘Green Zone' as defined by [the defendants] at [Rustle Meadow] and/ or that applies to the plaintiffs' property at [Rustle Meadow]; [8] an order that all statutory liens arising from fines and/or penalties assessed against the plaintiffs by the association from the beginning of time to date are removed, discharged and declared null and void; [9] attorney's fees and costs pursuant to [§] 47-278 (a); and [10] any and all other relief, legal or equitable, that the court deems just and proper.'' (Footnote added.)

         The defendants thereafter filed both an answer and a counterclaim. In that counterclaim, the defendants sought recourse related to (1) certain unpaid assessments levied against units in Rustle Meadow; (2) fines imposed by the association for unauthorized landscaping allegedly performed by the plaintiffs; and (3) fines imposed by the association against the plaintiffs due to their alleged interference with a boundary marker. In answering that counterclaim, the plaintiffs either denied its allegations or claimed that they lacked sufficient knowledge and therefore left the defendants to their burden of proof.

         During a pretrial deposition, portions of which were admitted into evidence at trial, the plaintiffs' counsel asked Miller to define the ‘‘green zone.'' Miller stated that ‘‘[i]t's a visual buffer that is one of the standards that the association uses to evaluate changes to landscaping . . . in the conduct of its business of the subdivision.'' When counsel requested a more detailed explanation of that ‘‘buffer, '' Miller stated that ‘‘[i]t's an area where natural vegetation would be protected and not removed, destroyed, cut, or in other ways inhibited so as to provide a visual buffer between adjoining building lots.'' Miller further confirmed that ‘‘[t]here are no documents recorded at the [Canton] town hall that contain the phrase, the Green Zone.''

         A court trial was held in November, 2014. One day before trial was to begin, the plaintiffs filed a motion in limine seeking to preclude any testimony or documentation relating to the green zone, arguing that because the term ‘‘green zone'' is not contained in either the declaration or any other material recorded on the Canton land records, it is ‘‘is clearly unenforceable'' under the act. The trial court agreed, stating that ‘‘it doesn't seem . . . that it's reasonable if it is not in writing. . . . I'm granting the motion in limine because I don't think that the so-called green zone, being unwritten, is . . . sufficient notice to the prospective buyer.''

         Trial proceeded over three days, during which the court heard testimony from the plaintiffs, Miller, and Welles. Following the close of evidence, the court held a hearing on the issue of attorney's fees, at which the plaintiffs represented that they had incurred $47, 420.33 in such expenses.

         In its January 14, 2015 memorandum of decision, the court reiterated its previous finding, made while ruling on the motion in limine, that the ‘‘green zone is not reasonable because it was not in writing . . . . [T]here is nothing in writing in the declaration or bylaws to indicate to anyone, including the plaintiffs, that there is a green zone . . . . Accordingly, this court finds that it was illegal and inequitable for the association to deny the applications for a fence around the pool in the [green zone].'' (Citation omitted.) The court then proceeded to rule in favor of the plaintiffs on all counts of the defendants' counterclaim. At the same time, the court ruled in favor of the defendants on the plaintiffs' request for the appointment of a receiver for the association.

         The court then issued six specific orders. First, it ordered ‘‘[a] temporary injunction . . . that the association permit the plaintiffs to erect a fence around their swimming pool in accordance with the town of Canton's rules and/or regulations, whether in the green zone or not. Further, the defendants are prohibited from interfering with the plaintiffs' use of the ‘green zone, ' whether the plaintiffs remove, replace, alter or add trees and foliage. The green zone is, after all, the plaintiffs' property. The defendants are ordered to cooperate with the plaintiffs in case a variance is needed or any other action is needed by them to accomplish the erection of the fence around the swimming pool as desired by the plaintiffs. [Second] the defendants are ordered to remove, immediately, any liens that have been placed against the plaintiffs' property for fines/assessments. [Third] a temporary injunction is issued prohibiting Miller from assigning his rights or powers as the owner of the subdivision or as the president of the association to his wife, heirs, successors, assigns and/or family members [from] holding a position on the board of the association as well as any and all relief requested in [the] plaintiffs' application for an injunction except for arms-length sales of individual lots, and their request for a receiver. [Fourth] the green zone as defined by the defendants as it applies to the plaintiffs' property at the development is hereby declared null and void. [Fifth] all parties are prohibited from disparaging or criticizing each other to others, including, but not limited to, possible buyers of lots in the subdivision. [Sixth, the defendants'] counterclaim [is] hereby rejected. The defendants' request for attorney's fees is denied.''

         Last, the court rendered an award of attorney's fees in favor of the plaintiffs in the amount of $57, 718.25. The defendants subsequently filed a ‘‘motion to reargue and reconsider memorandum of decision'' and a ‘‘motion for articulation and rectification, '' both of which the court summarily denied. The defendants commenced this appeal on February 23, 2015.

         Days later, the defendants filed a motion requesting a stay of the injunctive relief ordered by the court pending resolution of this appeal. On March 27, 2015, the trial court issued the following order: ‘‘Denied. With the exception that, for clarification purposes, Jeffrey Miller, Linda Welles, Pam Claywell and unit owners may serve on the board of directors of the association. The court finds that the balance of the equities is in favor of the plaintiffs. Under [Practice Book §] 61-12, there is little likelihood that the [defendants] will prevail because it is well settled law that temporary injunctions are not appealable.[18] There is no irreparable harm to be suffered by the defendants upon immediate implementation of the judgment. As for the automatic stay provided during an appeal, this court, sua sponte, hereby terminates that stay.'' (Footnote added.) That same day, the court granted the plaintiffs' application for a prejudgment remedy in the amount of $72, 718.25.[19]

         On March 24, 2015, the plaintiffs filed in the trial court a motion for contempt, claiming, inter alia, that the defendants had continued to impose assessments on the plaintiffs' unit. In its April 6, 2015 order, the court stated that ‘‘[t]he motion for contempt is denied on the basis that [the defendants' counsel] has represented that no liens have been filed . . . .'' The court nonetheless ordered that ‘‘[t]he association is to remove any assessment against the plaintiffs for legal fees related to this case and any legal fees from here on in related to this case, which the court declares said fees to be null and void. . . . The termination of the automatic stay remains in place, except that the plaintiffs may not execute on the prejudgment remedy or its substitution while the appeal is pending.'' On April 24, 2015, the defendants filed an amended appeal with this court to encompass those additional rulings.

         On May 13, 2015, this court granted a motion for review filed by the defendants with respect to the trial court's denial of a stay of injunctive relief and sua sponte termination of the automatic stay. This court vacated those orders, specifically determining that the trial court's judgment awarding injunctive relief was permanent in nature and, thus, appealable. This court therefore remanded the matter to the trial court with direction to (1) consider whether a stay of such relief should be imposed in this case under General Statutes § 52-477[20] and (2) to reconsider whether the automatic stay should be terminated pursuant to Practice Book § 61-11.

         On June 25, 2015, the trial court issued an order in response thereto. In that order, the court reiterated that the ‘‘green zone'' was not in writing. It then found that ‘‘the due administration of justice requires an order that the stay be terminated because it is unlikely that the [defendants] will prevail in view of the fact that the ‘green zone' is illegal.'' The court thus terminated the stay ‘‘to the extent that the plaintiffs may install a permanent fence surrounding the swimming pool within the ‘green zone, ' but shall use their best efforts not to interfere with shrubbery and trees. . . . For the same reasons, the ‘green zone' being illegal, the stay is terminated as to the fines imposed by the defendants because of alleged violation of said ‘green zone.' The court granted a prejudgment remedy on behalf of the plaintiffs, but no attachment or garnishment should be made because the parties have agreed to a certificate of deposit to be held in escrow, which will cover the prejudgment remedy.'' The defendants then filed a further motion for review with this court regarding that order. This court granted review of that motion, but denied the relief requested.


         The principal issue in this appeal is whether the trial court applied the proper legal standard governing judicial review of the discretionary determinations of an association in a common interest community, or whether, as the defendants contend, its decision constituted a ‘‘gross departure'' from that standard. In answering that question, we note that this is an emerging area of the law that has received relatively little treatment by the appellate courts of this state. We begin, therefore, with an overview of the development of common interest community jurisprudence.



         ‘‘Although common-interest communities date back into the 19th century, they have become a widely available form of housing only since the 1960s.'' 2 Restatement (Third), Property, Servitudes § 6.13, comment (b), p. 239 (2000); accord Cape May Harbor Village & Yacht Club Assn., Inc. v. Sbraga, 421 N.J.Super. 56, 69, 22 A.3d 158 (App. 2011) (‘‘[c]ommon interest developments are a relatively recent phenomenon, but . . . have rapidly grown in the United States''). As noted by many commentators, ‘‘[a] large and growing portion of the housing stock of America is located in common interest communities governed by owner associations.'' (Footnote omitted.) S. French, ‘‘Making Common Interest Communities Work: The Next Step, '' 37 Urb. Law. 359, 359 (2005); see also E. Lombardo, ‘‘A Better Twin Rivers: A Revised Approach to State Action by Common-Interest Communities, '' 57 Cath. U. L. Rev. 1151, 1151 (2008) (‘‘[n]early fifty-nine million Americans live in private common-interest communities, governed by member-elected governing boards or associations''); A. Arabian, ‘‘Condos, Cats, and CC&Rs: Invasion of the Castle Common, '' 23 Pepp. L. Rev. 1, 24 (1995) (‘‘[c]ommon interest developments are the fastest growing form of housing in the United States'').

         As our Supreme Court has explained, the act ‘‘contemplates the voluntary participation of the owners'' within a common interest community. Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 326, 544 A.2d 1207 (1988). In purchasing units in a common interest community, owners forfeit certain liberties with respect to the use of their property by voluntarily consenting to restrictions imposed thereon, as specified in the declaration of the community. See, e.g., Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 738 (unit owners in common interest community give up degree of freedom they otherwise would enjoy in separate privately owned property); Villas West II of Willowridge Homeowners Assn., Inc. v. McGlothin, 885 N.E.2d 1274, 1278-79 (Ind. 2008) (‘‘Restrictive covenants are used to maintain or enhance the value of land by reciprocal undertakings that restrain or regulate groups of properties. . . . Property owners who purchase their properties subject to such restrictions give up a certain degree of individual freedom in exchange for the protections from living in a community of reciprocal undertakings.'' [Citation omitted.]), cert. denied sub nom. Ashcraft v. Villas West II of Willowridge Homeowners Assn., Inc., 555 U.S. 1213, 129 S.Ct. 1527, 173 L.Ed.2d 657 (2009); Levandusky v. One Fifth Avenue Apartment Corp., 75 N.Y.2d 530, 536, 553 N.E.2d 1317, 554 N.Y.S.2d 807 (1990) (purchase of unit in common interest community ‘‘represents a voluntary choice to cede certain of the privileges of single ownership to a governing body''); 1 Restatement (Third), Property, Servitudes § 3.1, comment (i), p. 364 (2000) (‘‘policies favoring freedom of contract, freedom to dispose of one's property, and protection of legitimate-expectation interests nearly always weigh in favor of the validity of voluntarily created servitudes'').

         ‘‘Historically, restrictive covenants have been used to assure uniformity of development and use of a residential area to give the owners of lots within such an area some degree of environmental stability.'' Montoya v. Barreras, 81 N.M. 749, 751, 473 P.2d 363 (1970). As the Supreme Court of California noted, ‘‘[u]se restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement. . . . [S]ubordination of individual property rights to the collective judgment of the owners association together with restrictions on the use of real property comprise the chief attributes of owning property in a common interest development.'' (Citations omitted.) Nahrstedt v. Lakeside Village Condominium Assn., 8 Cal.4th 361, 372-74, 878 P.2d 1275, 33 Cal.Rptr.2d 63 (1994).

         Owners of units in a common interest community, in turn, secure the right to enforce those restrictions against others.[21] See General Statutes § 47-278; Bella Vista Condominium Assn., Inc. v. Byars, 102 Conn.App. 245, 254, 925 A.2d 365 (2007) (owner has ‘‘a cause of action against the declarant or others who are subject to the provisions of the act when such parties violate the terms of either the act or the particular association's declaration or bylaws''); cf. Mannweiler v. LaFlamme, 46 Conn.App. 525, 535-36, 700 A.2d 57 (discussing right of owners to enforce restrictions in light of presumption that ‘‘each purchaser has paid a premium for the property in reliance on the uniform development plan being carried out''), cert. denied, 243 Conn. 934, 702 A.2d 641 (1997); Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, 8, 449 P.2d 361 (1969) (‘‘[i]t is no secret that housing today is developed by subdividers who, through the use of restrictive covenants, guarantee to the purchaser that his house will be protected against adjacent construction which will impair its value, and that a general plan of construction will be followed''); Lake at Twelve Oaks Homes Assn., Inc. v. Hausman, 488 S.W.3d 190, 198 (Mo. App. 2016) (restrictions in ‘‘the [a]ssociation's [d]eclarations were adopted for the purposes of enhancing and protecting the value, desirability, and attractiveness of the subdivision'').

         At first blush, the inherently restrictive nature of a common interest community may appear to conflict with public policy favoring the free and unrestricted use of real property, which ‘‘was dominant in the United States throughout the nineteenth century . . . .'' Pertzsch v. Upper Oconomowoc Lake Assn., 248 Wis.2d 219, 232, 635 N.W.2d 829 (App 2001) (Anderson, J, concurring); cf. Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912) (restrictive covenants narrowly construed ‘‘being in derogation of the common-law right to use land for all lawful purposes''). Nevertheless, the proliferation of common interest communities in the past half century has led courts to reconsider certain presumptions regarding covenants utilized therein. As the Supreme Court of New Hampshire noted four decades ago, ‘‘[t]he former prejudice against restrictive covenants which led courts to strictly construe them is yielding to a gradual recognition that they are valuable land use planning devices.'' Joslin v. Pine River Development Corp., 116 N.H. 814, 816, 367 A.2d 599 (1976). That court further stated that ‘‘private land use restrictions have been particularly important in the twentieth century when the value of property often depends in large measure upon maintaining the character of the neighborhood in which it is situated.'' (Internal quotation marks omitted.) Id., 817. As the Supreme Court of Washington put it, ‘‘[t]he premise that protective covenants restrict the alienation of land and, therefore, should be strictly construed may not be correct. Subdivision covenants tend to enhance, not inhibit, the efficient use of land. . . . In the subdivision context, the premise [that covenants prevent land from moving to its most efficient use] generally is not valid.'' (Emphasis omitted; internal quotation marks omitted.) Riss v. Angel, 131 Wn. 2d 612, 622, 934 P.2d 669 (1997). That court thus concluded that, in cases involving a dispute ‘‘among homeowners in a [common interest community] governed by the restrictive covenants, rules of strict construction against the grantor or in favor of the free use of land are inapplicable.'' Id., 623; see also Lake at Twelve Oaks Homes Assn., Inc. v. Hausman, supra, 488 S.W.3d 195 (‘‘the right of one property owner to the protection of a restrictive covenant is a property right just as inviolable as is the right of others to the free use of their property when unrestricted''). Likewise, the Restatement (Third) of Property, Servitudes, promulgated in 1998, expressly eschews the public policy favoring the free use of land in this context.[22]

         In reviewing the determinations of an association in a common interest community, Connecticut, like most jurisdictions, draws a crucial distinction between the authority to exercise the rights and responsibilities delineated in a declaration; see Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005); and the propriety of an association's exercise thereof. See Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 734; accord Tierra Ranchos Homeowners Assn. v. Kitchukov, 216 Ariz. 195, 199, 165 P.3d 173 (App. 2007) (distinguishing between ‘‘a case involving the interpretation of restrictive covenants'' and ‘‘a case involving a challenge to [a] discretionary decision'' [emphasis omitted]); Felix Felicis, LLC v. Riva Ridge Owners Assn., 375 P.3d 769, 775 (Wyo. 2016) (distinguishing between questions ‘‘about the meaning of the covenants'' and ‘‘the question [of] whether the associations reasonably applied them'' [emphasis omitted]).

         With respect to the former, principles of contract interpretation control. It is well established that the declaration is the constitution of a community organized pursuant to the act. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 737; see also 2 Restatement (Third), Property, Servitudes § 6.12, comment (a), p. 226 (2000) (declaration is ‘‘the foundational document setting the parameters of the community's authority''); 8 Powell on Real Property (M. Wolf ed., 2000) § 54A.01');">54A.01 [11] [a], p. 47 (‘‘[t]he declaration is the constitution for the community''). A declaration ‘‘operates in the nature of a contract, in that it establishes the parties' rights and obligations . . . .'' Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. 734; see also Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 259, 14 A.3d 284 (2011). Accordingly, rulesofcontract construction govern the interpretation of declaration provisions. Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 734-35. No deference to the association, therefore, is warranted on the issue of association authority under a declaration. See Southeastern Connecticut Regional Resources Recovery Authority v. Dept. of Public Utility Control, 244 Conn. 280, 289-90, 709 A.2d 549 (1998).

         On the other hand, as to the exercise of an association's discretionary authority under a declaration, courts across the country agree that a degree of deference is warranted. As the Supreme Court of California recognized decades ago, ‘‘[g]enerally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development's governing documents, and comply with public policy.'' Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th 374; see also McNamee v. Bishop Trust Co., Ltd., 62 Haw. 397, 407, 616 P.2d 205 (1980) (‘‘[a]s long as the [association's] decision was reasonable and in good faith it will be upheld''); Melson v. Guilfoy, 595 S.W.2d 404, 407 (Mo. App. 1980) (finding ‘‘no abuse of discretion'' in discretionary determination to ‘‘approve or disapprove a fence''); Levandusky v. One Fifth Avenue Apartment Corp., supra, 75 N.Y.2d 538 (‘‘[s]o long as the board acts for the purposes of the [common interest community], within the scope of its authority and in good faith, courts will not substitute their judgment for the board's''); 2 Restatement (Third), Property, Servitudes § 6.9, comment (d), pp. 173-74 (2000) (‘‘[a]s the legitimacy and utility of design controls have become more widely accepted, courts have tended to increase the amount of deference they give to decisions reached by architectural-control committees or other design control authorities'').

         There are innumerable cases like the one now before us, in which a dispute arose over restrictive covenants that required association approval prior to construction on, or the alteration of, a unit in a common interest community. As the Supreme Court of Hawaii observed, ‘‘[c]ovenants requiring submission of plans and prior consent before construction . . . are commonly found in leases and deeds around the country. Most courts have found these approval clauses to be valid and enforceable as long as the authority to consent or approve is exercised reasonably and in good faith.'' McNamee v. Bishop Trust Co., Ltd., supra, 62 Haw. 402-403; see also Gleneagle Civic Assn. v. Hardin, 205 P.3d 462, 469 (Colo.App. 2008) (‘‘[t]he majority view with respect to covenants requiring submission of plans and prior consent to construction by the developer . . . is that such clauses, even if vesting the approving authority with broad discretionary powers, are valid and enforceable so long as the authority to consent is exercised reasonably and in good faith'' [internal quotation marks omitted]).[23]

         More specifically, ‘‘[m]ost jurisdictions . . . recognize the validity and, in a proper case, the enforceability of covenants requiring consent to construction or approval of plans even if those covenants do not contain explicit standards for approval.'' Cypress Gardens, Ltd. v. Platt, 124 N.M. 472, 477, 952 P.2d 467 (App. 1997); accord Dodge v. Carauna, 127 Wis.2d62, 66, 377 N.W.2d 208 (App. 1985) (‘‘[t]he result in jurisdictions that have considered covenants lacking objective standards of approval is generally consistent''). An association's exercise of its ‘‘broad latitude in making aesthetic decisions with respect to every type of improvement on the property''; Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860, 863 (Colo. 2001) (en banc); nevertheless remains subject to a general standard of reasonableness. See, e.g., Rhue v. Cheyenne Homes, Inc., supra, 168 Colo. 9 (‘‘a refusal to approve plans must be reasonable and made in good faith and must not be arbitrary or capricious''); Kirkley v. Seipelt, 212 Md. 127, 133, 128 A.2d 430 (App. 1957) (‘‘any refusal to approve the external design or location . . . would have to be . . . a reasonable determination made in good faith, and not high-handed, whimsical or captious in manner''); LeBlanc v. Webster, 483 S.W.2d 647, 650 (Mo. App. 1972) (‘‘we accept the validity of restrictions requiring prior approval or consent . . . but . . . such restrictions must be reasonably exercised''); Cypress Gardens, Ltd. v. Platt, supra, 124 N.M. 478 (plaintiff may ‘‘exercise its reserved authority to approve or reject'' mobile homes ‘‘as long as it does so reasonably which includes in good faith'').

         The Restatement (Third) of Property, Servitudes, adopts such an approach. As the reporter's note states, it ‘‘follows the trend of modern statutes in taking an expansive view of the powers of a property-owners association with respect to . . . protection of property values in the community through covenant enforcement and other actions to advance the collective interests of the common-interest community.'' 2 Restatement (Third), Property, Servitudes § 6.4, reporter's note, p. 92 (2000). Although it disavows the existence of an implied design control power; see id., § 6.9 and comment (b), p. 171; the Restatement recognizes that the exercise of an explicit design control power is ‘‘likely to increase property values by preventing aesthetic nuisances''; id., § 6.9, comment (d), p. 173; as such power is ‘‘intended to protect the legitimate expectations of members of common-interest communities.'' Id., § 6.13, comment (a), p. 234; accord Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th 381 (‘‘[w]hen landowners express the intention to limit land use, that intention should be carried out'' [internal quotation marks omitted]).

         With respect to design control powers that vest discretion in an association to approve a proposed activity, the Restatement notes ‘‘two kinds of risks for property owners. [First, owners] may not be able to develop in accordance with their expectations because they cannot predict how [that discretion] will be applied. Second, property owners may be subject to arbitrary or discriminatory treatment because there are no standards against which the appropriateness of the power's exercise can be measured.'' 2 Restatement (Third), Property, Servitudes § 6.9, comment (d), p. 173 (2000). To alleviate those risks, the Restatement imposes a reasonableness standard on the exercise of discretionary design control powers. Section 6.13 (1) provides in relevant part that an association has the duty ‘‘to act reasonably in the exercise of its discretionary powers including rulemaking, enforcement, and design-control powers . . . .''[24] Id., § 6.13 (1) (c), p. 233. The reasonableness standard ‘‘at its core, allows for an adjudicative posture that honors the fundamental underpinnings of association functioning and structure, is responsive to association aims, takes into account investment-backed owner expectations, and appreciates the potential for abuse.'' P. Franzese, ‘‘Common Interest Communities: Standards of Review and Review of Standards, '' 3 Wash. U. J.L. & Policy 663, 669 (2000).



         In Weldy, our Supreme Court, in accordance with courts throughout the country, recognized that a degree of deference is warranted to an association exercising its powers under a declaration. Relying on the Restatement (Third) of Property, Servitudes, the court observed that ‘‘declarations and other governing documents contain broad statements of general policy with due notice that the board of directors is empowered to implement these policies and address day-to-day problems in the [association's] operation. . . . Thus, the declaration should not be so narrowly construed so as to eviscerate the association's intended role as the governing body of the community. Rather, a broad view of the powers delegated to the association is justified by the important role these communities play in maintaining property values and providing municipal-like services.'' (Internal quotation marks omitted.) Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 737. The court continued: ‘‘Because an association's power should be interpreted broadly, the association, through its appropriate governing body, is entitled to exercise all powers of the community except those reserved to the members. . . . This broad view of the powers delegated to the [common interest community's] board of directors is consistent with the principle inherent in the [common interest ownership] concept . . . that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. . . . [U]nit owners comprise a little democratic sub society of necessity more restrictive as it pertains to [the] use of [common interest] property than may be existent outside'' the common interest community. (Citations omitted; internal quotation marks omitted.) Id., 738.

         In so noting, our Supreme Court expressly relied on Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. App. 1975), an early case that employed a reasonableness standard of review to discretionary association action. In that case, the court held that ‘‘the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness.'' Id., 182. In another early decision addressing the exercise of such discretion, the Court of Appeals of Maryland similarly reasoned that ‘‘[t]he language used in the covenants . . . makes plain the desire to regulate the construction of the dwellings in such a manner as to create an attractive and desirable neighborhood. We think the parties had a right voluntarily to make this kind of a contract between themselves; and the covenant does not create any interference with the fee of the property that would require it to be stricken down as against public policy. It does not prevent the owner from conveying the property or impose any unlawful restraint of trade, but affects only its method of use. We hold that any refusal to approve the [proposed alterations] would have to be based upon a reason that bears some relation to the other buildings or the general plan of development; and this refusal would have to be a reasonable determination made in good faith, and not high-handed, whimsical or captious in manner.'' Kirkley v. Seipelt, supra, 212 Md. 133.

         In Weldy, our Supreme Court instructed that review of an association's discretionary determinations requires a two part inquiry. ‘‘When a court is called upon to assess the validity of [an action taken] by [an association], it first determines whether the [association] acted within its scope of authority and, second, whether the [action] reflects reasoned or arbitrary and capricious decision making.'' (Emphasis added; internal quotation marks omitted.) Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 734. The first part of that inquiry is consonant with prior precedent indicating that the question of an association's authority to exercise certain rights under a declaration is governed by principles of contract interpretation. See Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. 734. The second part of that inquiry entails application of a reasonableness standard. Indeed, in its very next sentence, the court in Weldy noted that only the first part of the two part inquiry was at issue ‘‘[b]ecause the plaintiffs do not contend that the [association's discretionary determination] is unreasonable . . . .''[25] Weldy v. Northbrook Condominium Assn., Inc., supra, 734.

         Weldy was decided by our Supreme Court in 2006. The two part test articulated therein has therefore governed review of determinations by common interest community associations in Connecticut for more than one decade. See, e.g., Gugliemi v. Willowbrook Condominium Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV-11-6018687, 2013 Conn. Super. LEXIS 700 (March 28, 2013) (applying Weldy's two part test), aff'd, 151 Conn.App. 806, 96 A.3d 634 (2014); Weinstein v. Conyers Farm Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-X08-106006978-S, 2012 Conn. Super. LEXIS 2683, *19 (October 31, 2012) (reciting Weldy's two part test and concluding that association's imposition of condition on construction approval was ‘‘reasonable''); Bosco v. Arrowhead by the Lake Assn., Inc., Superior Court, judicial district of Waterbury, Docket No. CV-05-4007579-S, 2008 Conn. Super. LEXIS 1106 (May 8, 2008) (applying Weldy's two part test).



         As courts across this state have recognized, Weldy articulated a two part test that governs review of discretionary association determinations. At the same time, that case involved no claim as to whether the association's determination was reasonable, a distinction underscored by our Supreme Court. Rather, ‘‘the only issue before the court'' was the authority of the association. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 734. The present case, by contrast, plainly involves a matter-specifically, the erection of fencing on the plaintiffs' unit-over which the association is vested with discretionary design control authority under the declaration. See Declaration of Rustle Meadow, §§ 10.1 (k) and 13.1 (a) (ii).[26] The plaintiffs recognized that authority in submitting written proposals that invoked those provisions of the declaration and requested the approval of the association thereunder.[27]Furthermore, we note that the declaration provisions in question themselves impart a reasonableness standard on the conduct of the association in exercising its design control powers. See footnote 26 of this opinion. Unlike Weldy, then, the issue before the court in this case is the reasonableness of the association's discretionary determination.

         A criticism of some decisions that apply a reasonableness standard in this context is that they do so ‘‘without defining what reasonable means.'' W. Hyatt, ‘‘Common Interest Communities: Evolution and Reinvention, '' 31 J. Marshall L. Rev. 303, 354 (1998). For example, in Hidden Harbour Estates, Inc. v. Norman, supra, 309 So.2d 182, the court stated simply that ‘‘we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot.'' Given the near universal recognition that a degree of deference to discretionary association determinations is appropriate, courts in recent years have noted the need for ‘‘a more objective ‘reasonableness' standard by which to judge the discretionary actions of community associations.'' Tierra Ranchos Homeowners Assn. v. Kitchukov, supra, 216 Ariz. 200. An objective standard serves to minimize the potential that trial judges will substitute their subjective judgment for that of the entity explicitly and contractually entrusted with discretionary authority under the declaration.[28] As the Restatement notes, the proper application of the reasonableness standard must ‘‘protect the collective decisionmaking processes of common-interest communities from second-guessing by the judiciary . . . .'' 2 Restatement (Third), Property, Servitudes § 6.13, comment (a), p. 235 (2000). A standard that is objective in nature and deferential to the exercise of association discretion nonetheless affords meaningful review. See Lamden v. La Jolla Shores Clubdominium Homeowners Assn., 21 Cal.4th 249, 269, 980 P.2d 940, 87 Cal.Rptr.2d 237 (1999) (rejecting claim that ‘‘a rule of judicial deference will insulate community association boards' decisions from judicial review'' and stating that the ‘‘judicial oversight'' provided under deferential standard ‘‘affords significant protection against overreaching by such boards'').

         No Connecticut appellate court has addressed the contours of the reasonableness metric in the context of common interest ownership communities. It is appropriate, therefore, to look to other jurisdictions for guidance. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 737.

         Mindful of the deference accorded to associations vested with discretionary authority, many courts have held that a reasonableness analysis properly begins with consideration of the rationale and stated bases for the association's determination. See Laguna Royale Owners Assn. v. Darger, 119 Cal.App.3d 670, 684, 174 Cal.Rptr. 136 (1981) (‘‘[t]o determine whether or not [an] [a]ssociation's disapproval of [the proposed activity] was reasonable it is necessary to isolate the reason or reasons approval was withheld''); McNamee v. Bishop Trust Co., Ltd., supra, 62 Haw. 406 (reasonableness analysis focuses on association's ‘‘reasons for disapproving the [plaintiffs'] application''); Cypress Gardens, Ltd. v. Platt, supra, 124 N.M. 478 (‘‘[i]n determining what is reasonable in such cases, the trial court should consider the facts and circumstances surrounding'' the exercise of discretionary authority). In considering the rationale underlying the association's exercise of discretionary authority, a reviewing court should make ‘‘findings as to [the association's] intent and objectives [and] what substantial and reasonable interests would be protected by enforcing the restriction, '' as well as ‘‘findings as to the relation of the [proposed activity] to its surroundings and other buildings and structures in the subdivision.'' Dodge v. Carauna, supra, 127 Wis.2d 67. Such findings are ‘‘crucial to a determination of the reasonableness'' of an association's discretionary determination. Id.

         Courts also give considerable weight to the purposes underlying a common interest community. As one stated, ‘‘[w]e hold that in exercising its [discretionary] power . . . [the] [a]ssociation must act reasonably, exercising its power in a fair and nondiscriminatory manner and withholding approval only for a reason or reasons rationally related to the protection, preservation and proper operation of the property and the purposes of [the] [a]ssociation as set forth in its governing instruments.'' Laguna Royale Owners Assn. v. Darger, supra, 119 Cal.App.3d 680; see also Perry v. Bridgetown Community Assn., Inc., 486 So.2d 1230, 1234 (Miss. 1986) (‘‘[r]eview by the court must be guided by the intent stated in the declaration''); Lake at Twelve Oaks Homes Assn., Inc. v. Hausman, supra, 488 S.W.3d 197 (focusing on ‘‘[t]he plain and obvious intent of the [d]eclarations'' and its ‘‘purposes'' in reviewing association exercise of design control discretion). Several commentators have suggested that this is an integral, if not predominant, consideration in evaluating the reasonableness of discretionary association action. See, e.g., P. Franzese, supra, 3 Wash. U. J.L. & Policy 687 (‘‘courts ought to apply a reasonableness standard rooted in consideration of the association's legitimate objectives and an assessment of the rational relationship of the given action to those objectives''); R. Ellickson, ‘‘Cities and Homeowners Associations, '' 130 U. Pa. L. Rev. 1519, 1530 (1982) (‘‘respect for private ordering requires a court applying the reasonableness standard to comb the association's original documents to find the association's collective purposes, and then to determine whether the association's actions have been consonant with those purposes''). We agree that consideration of the collective purposes of an association, as reflected in its governing instruments, is essential to the proper application of the reasonableness standard.

         Accordingly, application of the reasonableness standard in the context of a challenge to discretionary association action cannot focus exclusively on the interests of the disgruntled unit owner or the executive board of an association. Rather, courts must remain cognizant of the larger interest of the common interest community. See Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th 386 (reasonableness ‘‘to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole'' [emphasis omitted]); P. Franzese, supra, 3 Wash. U. J.L. & Policy 684 (noting cases that ‘‘nicely advance a fact-specific approach rooted not in the circumstances peculiar to the individual unit owner but instead in consideration of the given community's unique character and purposes when viewed as a whole''). As the Restatement recognizes, restrictive covenants that vest discretionary authority in an association are ‘‘intended to protect the legitimate expectations of members of common-interest communities.'' 2 Restatement (Third), Property, Servitudes § 6.13, comment (a), p. 234 (2000); see also Nahrstedt v. Lakeside Village Condominium Assn., supra, 372 (‘‘[u]se restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement''); Rhue v. Cheyenne Homes, Inc., supra, 168 Colo. 8 (‘‘restrictive covenants . . . guarantee to the purchaser that his house will be protected against adjacent construction which will impair its value, and that a general plan of construction will be followed''); Riss v. Angel, supra, 131 Wn. 2d 623-24 (urging ‘‘special emphasis on [protecting] the homeowners' collective interests'' [internal quotation marks omitted]). The interests of that constituency must be considered in applying the reasonableness standard.

         At the same time, an association cannot exercise its discretionary authority in an arbitrary or capricious manner. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 734; see also Worthinglen Condominium Unit Owners' Assn. v. Brown, 57 Ohio App.3d 73, 76, 566 N.E.2d 1275 (1989) (determination of ‘‘whether the decision or rule was arbitrary or capricious'' entails consideration of whether ‘‘there be some rational relationship of the decision or rule to the safety and enjoyment of the [common interest community]'' [emphasis omitted]). That authority must be exercised in good faith and not in a discriminatory manner. See Worthinglen Condominium Unit Owners' Assn. v. Brown, supra, 76. Examples of conduct that substantiated a finding that an association's determination was unreasonable include a case in which ‘‘there is no evidence that the [association's executive board] reasonably assessed the impact of'' the proposed activity or that it ‘‘visited the site, much less with an eye to neighbors' views or privacy''; Riss v. Angel, supra, 131 Wn. 2d 628; and one in which the architectural control committee failed to ‘‘undertake . . . a minimum effort'' to visit ‘‘the proposed construction site'' and failed to ascertain ‘‘its impact on [neighboring] properties.'' Leonard v. Stoebling, 102 Nev. 543, 549, 728 P.2d 1358 (1986). The selective enforcement of a restriction against a unit owner likewise has been deemed arbitrary and unreasonable in certain circumstances. See White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 352 (Fla. 1979) (holding that use restriction in declaration ‘‘was reasonably related to a lawful objective'' but association nonetheless ‘‘is estopped from selectively enforcing [that] restriction''). An association's discretionary design control determination also was deemed arbitrary when ‘‘the record is devoid of an objective showing that [the proposed activity is] aesthetically disharmonious with the character of, or that [it] detract[s] from, the quality of the neighborhood.'' Kies v. Hollub, 450 So.2d 251, 256 (Fla. App. 1984). Similarly, an association's denial of permission for a unit owner ‘‘to proceed with [a] heating and air conditioning upgrade''; Billig v. Buckingham Towers Condominium Assn. I, Inc., 287 N.J.Super. 551, 555, 671 A.2d 623 (App. 1996); was ‘‘not reasonable because the change did not materially or appreciably affect the [common interest community] property, the common elements, the limited common elements, the collective interests of the unit owners, or the interests of any individual unit owner.'' Id., 564. In all such cases, the specific nature of the proposed activity was weighed against the interests of the common interest community.

         Before turning our attention to the decision of the trial court, two additional aspects of the reasonableness standard merit discussion. The first pertains to the allocation of the burden of proof in an action in which a unit owner in a common interest community challenges an association's discretionary decisionmaking. Although our appellate courts have not addressed this issue, we note that our Supreme Court in Weldy expressly relied on the Restatement (Third)of Property, Servitudes, in recognizing a broad view of the powers delegated to the association and the corresponding deference accorded thereto. See Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 737-38. Addressing the duty of an association to act reasonably in exercising discretionary powers, the Restatement places the ‘‘burden of proving a breach of duty by the association'' on a unit owner ‘‘challenging an action of the association under this section . . . .''[29] 2 Restatement (Third), Property, Servitudes § 6.13 (2), p. 233 (2000). As the commentary explains, ‘‘the purpose of this subsection is to protect the collective decisionmaking processes of common-interest communities from second-guessing by the judiciary and to protect the community from the expenses of too-ready resort to litigation by disgruntled community members, while at the same time protecting individual members from improper management and imposition by those in control of the association.'' Id., § 6.13, comment (a), p. 235. We believe that this allocation best comports with the presumption, reflected in the act, of voluntary participation of owners within a common interest ownership community; Wilcox v. Willard ...

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