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Bueno v. Firgeleski

Court of Appeals of Connecticut

March 27, 2018

LUZ E. BUENO ET AL.
v.
MICHAEL FIRGELESKI ET AL.

          Argued October 4, 2017

         Procedural History

         Action for a declaratory judgment declaring void and unenforceable a restrictive covenant in the deed to certain of the plaintiffs' real property, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Hon. A. William Mottolese, judge trial referee; judgment for the plaintiffs, from which the defendants appealed to this court. Affirmed.

          Colin B. Connor, with whom was Robert D. Russo III, for the appellants (defendants).

          Edward R. den Dooven, self-represented, with whom was Luz Elena Bueno, self-represented, the appellees (plaintiffs).

          Lavine, Elgo and Harper, Js.

          OPINION

          LAVINE, J.

         “A covenant that is a servitude ‘runs with the land'." 1 Restatement (Third), Property, Servitudes § 1.3 (1), p. 23 (2000). "When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude." 2 Restatement (Third), Property, Servitudes § 7.10 (1), p. 394 (2000).[1]

         This declaratory judgment action concerns the viability of a restrictive covenant (restriction) contained in a 1941 committee deed conveying 1.544 acres of a thirty acre farm in Darien that was once owned by Wilbur N. Waterbury (Waterbury land). The plaintiffs, Luz E. Bueno and Edward R. den Dooven, [2] own 1.38 acres of the Waterbury land.[3] The defendants, Michael Firgeleski, Allison Firgeleski, Pole M. Chan, Jessica M. Chan, Richard B. Myers, Margaret Q. Myers, Scott J. Cronin, and Eileen M. Cronin (collectively, Briar Brae defendants), and Kenneth S. Martin and Rachel P. Martin (Martins), own lots that were created from a portion of the remainder of the thirty acres of the Waterbury land and are adjacent to the plaintiffs' property. The plaintiffs sought a judgment declaring the restriction void and unenforceable to permit the sale of a portion of their property.[4] In its judgment, the court declared unenforceable the portion of the restriction that limits the plaintiffs' use of their property to one dwelling house, prohibits the erection of any building within twenty-five feet of the southern boundary, and requires approval of the grantor before erecting a structure on the property.

         The defendants appealed, claiming that three of the court's factual findings are erroneous in that they are not supported by the evidence. With respect to the court's legal conclusions, the defendants claim that the court (1) improperly looked beyond the four corners of the deeds and (2) misapplied the facts of the present case to Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 5 A.2d 700 (1939) (restriction's purpose frustrated) and Shippan Point Assn., Inc. v. McManus, 34 Conn.App. 209, 215, 641 A.2d 144 (same), cert. denied, 229 Conn. 923, 642 A.2d 1215 (1994).[5] We affirm the judgment of the trial court.

         Before turning to our legal analysis, we describe in detail the history of the many land transactions that underlie the present appeal. In the early 1930s, the estate of Wilbur N. Waterbury included a thirty acre farm on the eastern side of Hoyt Street. Beginning with a 1934 partition action that was followed years later by certain land transactions, the character of the Water- bury land transformed from a farm to a suburban subdivision. A 1941 committee deed conveying 1.544 acres of the Waterbury land contains the restriction at the heart of the present matter. The resolution of this appeal turns on our construction of that restriction given the circumstances surrounding its creation.[6] The restriction or a variation of it is contained in the deeds to lots owned by the plaintiffs and the Martins, but it is not contained in the deeds to the lots owned by the Briar Brae defendants.

         Prior to the events giving rise to this appeal, three of Waterbury's nieces were the beneficiaries of a life estate in the Waterbury land.[7] In 1934, due to changing economic and societal circumstances, the Waterbury nieces initiated a partition action seeking permission to sell the Waterbury land in whole or in part. In 1937, Mary Alice Vaughan acquired 2.11 acres of the Water-bury land, which included the Waterbury homestead, consisting of a single-family home and outbuildings. See appendix to this opinion.

         In 1941, the Superior Court ordered Arthur I. Crandall, committee, [8] to convey 1.544 acres of the Waterbury land to Clyde E. Vaughan (Vaughan). Crandall's deed to Vaughan contains the subject restriction. See footnote 6 of this opinion. Vaughan's land was adjacent to the land owned by Mary Alice Vaughan on the south and on the east; the area of land on the east was triangular in shape. See appendix to this opinion. Together the Vaughans[9] owned 3.654 acres of adjoining land that fronted on Hoyt Street. The Waterbury nieces retained the remainder of the Waterbury land that surrounded the Vaughans' properties.

         In 1953, Mary Alice Vaughan and Vaughan, individually, conveyed their respective properties to Robert G. Shepherd and Helen D. Shepherd (Shepherds). The deed from Mary Alice Vaughan conveying her property did not contain the restriction, but the deed conveying Vaughan's property to the Shepherds contained the restriction. Specifically the deed from Vaughan stated, "[s]aid premises are subject to . . . restrictive covenants and agreements of record . . . ." In 1954, the Shepherds conveyed a portion of the land they acquired from Vaughan, specifically 1.38 acres, to Robert W. E. Anderson and Ingeborg Smith Anderson (Andersons). The Shepherds' deed of conveyance contained the restriction and stated, "[b]eing a portion of the premises conveyed to the said grantors by" Vaughan in 1953. The Shepherds did not convey to the Andersons the triangularly shaped area of land that lay to the east of the 2.11 acres once owned by Mary Alice Vaughan.

         In 1956, the Shepherds conveyed the remainder of their land, including the triangularly shaped area, to Richard L. Webb and Nina H. Webb (Webbs). The deed to the Webbs subjected their property to the restriction "insofar as they affect the above described premises . . . ." In 1971, the Webbs created a three lot subdivision by dividing the land they had acquired from the Shepherds, i.e., lot 1, lot 2, and lot 3 (Webb subdivision).[10] Lot 2 contained the Waterbury homestead. The Martins now own lot 3, which includes a portion of the triangularly shaped area of land that Crandall deeded to Vaughan in 1941. The Martins' deed states that the premises are subject to "[t]he effect, if any, of restrictive covenants and agreements contained in" the deed to Vaughan. (Emphasis added.) Lot 3 is adjacent to the plaintiffs' lot on the north.

         In 2008, the plaintiffs acquired 1.38 acres of land from the Andersons. The land was once part of the 1.544 acres deeded to Vaughan in 1941, less the triangularly shaped piece of land. The plaintiffs' deed contains the restriction. See footnote 6 of this opinion.

         In 1954, the remaining thirty acres of Waterbury land, land that had not been owned by either of the Vaughans, was acquired by Arthur Olsen Associates, Inc. The deed conveying the remaining Waterbury land does not contain the restriction. The Darien Planning and Zoning Commission thereafter approved a thirty-one lot subdivision of single-family homes to be built on the land acquired by Arthur Olsen Associates, Inc. The subdivision is known as Briar Brae, and none of the deeds to the lots in the subdivision contains the restriction. The lots owned by the Briar Brae defendants are adjacent to the land once owned by Mary Alice Vaughan and Vaughan on the east and south.[11]

         The plaintiffs commenced the present action in September, 2013.[12] Pursuant to their substitute complaint, the plaintiffs sought a declaratory judgment that the restriction in their deed is void and unenforceable. Such a declaration would enable them to subdivide their land into two lots: one for their own home and one for development. The plaintiffs alleged several reasons why the restriction should be declared void and unenforceable: (1) the 1941 deed violated the Superior Court's order to the committee, [13] (2) the circumstances of the neighborhood surrounding the Waterbury land have changed significantly, (3) the restriction has been abandoned, (4) the restriction benefits no one, (4) the restriction is unfair to the plaintiffs as they cannot reach an agreement with the beneficiaries of the restriction, (5) the restriction is barred by laches, and (6) the restriction has been extinguished by the Marketable Title Act, General Statutes § 47-33b et seq.

         The court tried the matter in the fall of 2015. Numerous maps and deeds were placed into evidence, and the court viewed the thirty acres of Waterbury land in the company of the parties' counsel. The court issued its memorandum of decision on January 20, 2016.[14] We now examine the court's adjudication of the plaintiffs' claims.

         The court first considered the beneficiary of the restriction. It found that the restriction first appeared in the deeds of the Martins' predecessors in title in 1956 when the Shepherds conveyed the land formerly owned by Mary Alice Vaughan and the triangularly shaped area of land formerly owned by Vaughan to the Webbs. The deed from the Shepherds to the Webbs stated in part: "Said premises are conveyed subject to restrictive covenants and agreements as set forth in a deed given by . . . Crandall . . . to . . . Vaughan . . . insofar as they affect the above described premises . . . ." (Emphasis added.)

         The court also found that in 1971, when the Webbs subdivided the land into three building lots, they acted in disregard of the restriction. If the restriction had been applied before the Webb subdivision was created, dwellings would have been limited to the Waterbury homestead on lot 2. Moreover, when lot 2 was created, its southerly boundary rendered the Waterbury homestead in violation of the twenty-five foot setback requirement because the setback created by the subdivision was only fifteen feet.

         When the Martins took title to lot 3 in 2006, schedule A attached to their deed stated in part: "Said premises are subject to . . . [t]he effect, if any, of restrictive covenants and agreements contained in a deed from . . . Crandall . . . to Vaughan . . . ." (Emphasis added.) The court found it "apparent that the uncertainty concerning the applicability of the restriction . . . manifest[ed] itself by the use of the words ‘effect, if any.' "None of the deeds to the lots owned by the Briar Brae defendants contains the restriction. The plaintiffs' lot, therefore, is the only one of thirty-five lots created from the thirty acres of the Waterbury land that is expressly made subject to the restriction without the qualifying words, "effect, if any."

         The court's memorandum of decision demonstrates its familiarity with the applicable law. Generally, "restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains. Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928). With respect to the third class of covenants, the original grantor, who is the owner of the property benefited, and his assigns may enforce [the covenant] against subsequent purchasers of the property burdened. If the restrictive covenant is for the benefit of the remaining land of the grantor, it is an easement running with the land and may be enforced by a subsequent purchaser of the remaining land against the prior grantee and his successors in title . . . ." (Internal quotation marks omitted.) Grady v. Schmitz, 16 Conn.App. 292, 296, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988).

         The court noted that "[w]here the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor's successor in title can enforce, or release, the covenant depends on whether [the covenant] was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant as expressed therein, read in the light of the circumstances attending the transaction and the object of the grant. Bauby v. Krasow, 107 Conn. 109, 112-13, 139 A. 508 (1927)." (Emphasis added; internal quotation marks omitted.) Marion Road Assn. v. Harlow, 1 Conn.App. 329, 335, 472 A.2d 785 (1984). "The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . ." (Emphasis added; internal quotation marks omitted.) Id., 332.

         The court found that, at the time the restriction was created, the only dwelling on the Waterbury land was the Waterbury homestead. Given the circumstances under which the Waterbury land was developed, the court inferred that the grantor intended the restriction to benefit only that portion of his remaining land containing the Waterbury homestead and its service buildings. The court buttressed its conclusion with the fact that the restriction is not contained in the deeds to any of the lots in Briar Brae and that lot 3 was conveyed subject only to the "effect, if any" of the restriction. The court concluded, therefore, that the Waterbury estate manifested an intent not to restrict the remainder of the Waterbury land, stating that the indicia of the grantor's intent not to burden all of the Waterbury land outweighed any other evidence, including the ambivalent deed references. The court reasoned that the language "effect, if any" and similar words was consistent with the grantor's intent. Relying on Marion Road Assn. v. Harlow, supra, 1 Conn.App. 335, the court found that the restriction in this case was intended to benefit the grantor's retained land and could have no purpose other than to protect the grantor's homestead.

         In considering the plaintiffs' claim that the circumstances of the Waterbury land have changed so significantly since the restriction was created that it is no longer enforceable, the court assumed given the language of the restriction, i.e., "[i]t shall run with the land hereby conveyed and be binding upon the grantee, his heirs assigns forever, " that the restriction was appurtenant to the land conveyed to the plaintiffs. Where a restrictive covenant contains words of succession, i.e., heirs and assigns, a presumption is created that the parties intended the restrictive covenant to run with the land. See Kelly v. Ivler, 187 Conn. 31, 39-40, 450 A.2d 817 (1982).

         In analyzing the evidence, the court was cognizant of the rule that "[w]here a party seeks by way of affirmative relief to have a restrictive covenant modified or nullified on the basis of a change of circumstances . . . he must make it manifest that its purpose has been permanently frustrated, and that the change is so great as to defeat the object of the covenant." Grady v. Schmitz, supra, 16 Conn.App. 301. The relief "should be granted with caution and only when the motivating considerations are not only ample but so settled and lasting that it is manifest that the purpose of the original restriction has been permanently frustrated. The changes must be so great as clearly to neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenant." (Internal quotation marks omitted.) Fidelity Title & Trust Co. v. Lomas & Nettleton Co., supra, 125 Conn. 376-77. The change of circumstances may not be transient, and they must be drastic and permanent. Id. 378. Abandonment of a right requires the "voluntary and intentional renunciation [of a right] but the intent may be inferred as a fact from the surrounding circumstances." (Internal quotation marks omitted.) Blum v. Lisbon Leasing Corp., 173 Conn. 175, 182, 377 A.2d 280 (1977).

         In deciding whether there has been a change of circumstances sufficient to warrant nullification of the restriction, the court compared the circumstances of the Waterbury land as they were in 1941 when the restriction was created with present circumstances. The court found that the plaintiffs successfully had proved that seven years before the restriction was created, the land Crandall conveyed to Vaughan was part of a thirty acre farm on undeveloped land. In 1934, the Waterbury nieces commenced a partition action that resulted in Crandall's appointment to sell the Waterbury land.[15] From those facts, the court inferred that in 1934, the character of the neighborhood in the vicinity of the Waterbury land was changing from agricultural to suburban. Suburban housing had begun to appear in the section of Darien where the Waterbury land was located, but the Waterbury land was not yet part of the suburban transition. In 1937, only one residential structure with outbuildings existed on the Waterbury land. None of the remaining land was developed until 1954 when Arthur Olson Associates, Inc., received approval from the Darien Planning and Zoning Commission to create the thirty-one lot Briar Brae subdivision.

         The court also found that lot 3 is approximately 0.75 acres in size, which is approximately the size of the lot the plaintiffs would like to "spin off" from their land. Briar Brae is fully developed in predominantly one-half acre lots, each of which contains a single-family home that has existed for many years. By their very nature and purpose, the homes are intended to remain permanently in their present locations. The lots owned by the plaintiffs, the Martins and the Cronins front on Hoyt Street, also known as Route 106, which is an access road to the Merritt Parkway.

         The court further reasoned that if the restriction runs with the land, and, if arguendo, it was intended to benefit Briar Brae, it falls within the class of covenants known as the retained land theory. See Shippan Point Assn., Inc. v. McManus, supra, 34 Conn.App. 213 (restrictions imposed by grantee for benefit of adjoining land grantor retained). The court assumed for purposes of its analysis that the restriction runs with the land. The court applied the Fidelity Title & Trust Co. change of circumstances test to its factual findings and concluded that the plaintiffs had "amply satisfied" the change of circumstances test. The court found manifest that the purpose of the restriction has been frustrated permanently as the very land that it was intended to benefit, Briar Brae, had itself been subdivided into numerous building lots each of which is free of any such restriction and approximately the size of the lot that the plaintiffs seek to create.

         Moreover, the court found that lot 3, which is nominally similarly restricted as the plaintiffs' land, has been in flagrant violation of the restriction for many years. The court noted that repeated violations of a restriction without effective action to enforce it constitute grounds for nullification of the restriction. See Cappo v. Suda, 126 Conn.App. 1, 9, 10 A.3d 560 (2011) (court obligated to enforce restriction unless defendant can show enforcement inequitable). To establish abandonment of an easement by the acts of the owner of the dominant tract, one must prove that the owner's acts are "of so decisive and conclusive a character as to indicate and prove his intent to abandon the easement."[16] (Internal quotation marks omitted.) American Brass Co. v. Serra, 104 Conn. 139, 148, 132 A. 565 (1926). In addition, the owner must act voluntarily. Id. The court found that if the restriction requiring approval to build runs with the land, the right to enforce the restriction had been abandoned over a period of seventy-four years by the failure of anyone to exercise it with respect to any of the thirty-five lots in the Waterbury land, except the plaintiffs' lot. In finding that the restriction had been abandoned by failure to enforce it, the court compared the facts of the present case with Shippan Point Assn., Inc., in which twelve of twenty-five lots comprising the dominant estate in a development contravened a restrictive covenant. In the present case, thirty-four of thirty-five lots contravene the restriction.

         The court found that lot 3 is the southern portion of the land that the Shepherds conveyed to the Webbs and that the deed conveyed the entire parcel subject to the restriction.[17] If the parcel was subject to the restriction, development of the parcel was limited to the Waterbury homestead. Sometime after 1956, when houses were constructed on lots 1 and 3 of the Webb subdivision, that portion of the restriction that limited the number of dwelling houses to one was violated. When a house was built on lot 3, that portion of the restriction that prohibits the erection of a building within twenty-five feet of the southern boundary applied not to the property as a three lot subdivision, but to the land as a single parcel. The court concluded that when more than one dwelling was constructed on the Webbs' land, the purpose of the twenty-five foot setback became meaningless not only as to the Webb subdivision, but also as to the only property that could possibly benefit from it, i.e., the plaintiffs' property, because it adjoins the Webb subdivision on the south and the plaintiffs seek to avoid the restriction.

         The court further found that the plaintiffs' property itself is in violation of the restriction. In 1959, a two vehicle garage was constructed on the land without the grantor having approved the plan. In 2004, the main house was expanded by more than 2500 square feet and a shed was constructed eighteen feet from the southern border. Neither improvement was approved by the grantor. A perimeter fence also was added to the premises without approval.

         On the basis of the foregoing, the court declared so much of the restriction that limits the plaintiffs' lot to one dwelling house, prohibits the erection of any building within twenty-five feet of the southern border of the plaintiffs' lot, or requires grantor approval of structures on the plaintiffs' lot unenforceable by the ...


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