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White v. Latimer Point Condominium Association, Inc.

Court of Appeals of Connecticut

August 13, 2019

PETER WHITE
v.
LATIMER POINT CONDOMINIUM ASSOCIATION, INC., ET AL.

          Argued March 18, 2019

         Procedural History

         Action for, inter alia, a permanent injunction to prohibit the defendant home owners from continuing construction on a new condominium unit, and for other relief, brought to the Superior Court in the judicial district of New London and tried to the court, Hon. Joseph Q. Koletsky, judge trial referee; judgment for the defendants, from which the plaintiff appealed to this court. Affirmed.

          Vincent John Purnhagen, for the appellant (plaintiff).

          Robert B. Flynn, for the appellees (defendants).

          Keller, Bright and Flynn, Js.

          OPINION

          BRIGHT, J.

         The plaintiff, Peter White, appeals from the judgment of the trial court, ruling in favor of the defendants, Latimer Point Condominium Association, Inc., (association), and Gennaro Modugno and Elizabeth Modugno, whom we collectively refer to as the Modugnos, on the plaintiff's complaint, which was brought pursuant to General Statutes § 47-278.[1] On appeal, the plaintiff claims that the court misapplied and disregarded relevant case law, that it failed to apply properly the 10 percent rule contained in the association's bylaws, [2] that it ignored overwhelming evidence that the association failed to comply with its tree trimming schedule, and that it rendered a judgment that is neither legally correct nor factually supported by the record. We affirm the judgment of the trial court.

         The record reveals the following uncontested facts and procedural history, which are relevant to the plaintiff's appeal. The plaintiff is the owner of unit 23 at the Latimer Point Condominiums (Latimer), a common interest ownership community established pursuant to General Statutes § 47-200 et seq. Latimer is situated on Fishers Island Sound in Stonington. The Modugnos are owners of unit 7 at Latimer. Unit 7 is situated between unit 23 and Fishers Island Sound. All of the unit owners at Latimer are organized as the association, and the association is governed by a board of directors (board). The association, pursuant to Article XIV of its bylaws, has in place an Architectural Control Committee (committee) that is staffed and managed by volunteers.

         Because of extensive storm damage to unit 7, the Modugnos applied for approval from the committee to build a new home, elevated in height, to meet the new Federal Emergency Management Agency building standards and the town of Stonington's zoning regulations. The plaintiff objected to the application on the ground that the new home would interfere substantially with his water view, by obstructing that view by more than the 10 percent allowed under the bylaws. In particular, § 14.1.2 of the bylaws provides, in relevant part, that the association ‘‘shall ensure that no member's water view shall ever be diminished by more than 10 [percent] due to cumulative constructions of other units and/or the association, without the written consent of such member(s) . . . . In the event any unit's water view is increased by action pursuant to [§] 14.2, or other means, such increase shall be included in the 10[percent] determination.'' Section 14.2 provides, in relevant part, that ‘‘in order to reasonably preserve trees and vegetation on members' properties; and to enhance members' . . . existing water views from their units; the board and the [committee] shall regulate the planting, cutting, trimming and removal of trees, shrubs, hedges, and vegetation.''

         The committee retained Arthur Hayward, a licensed land surveyor, to conduct a primary water view analysis to determine whether the Modugnos' proposed new home would obstruct the plaintiff's primary water view to a degree greater than allowed by the bylaws. Hayward concluded that the Modugnos' proposed house would decrease the plaintiff's water view by 15.4 percent if there was no offsetting vegetation removal and trimming. With various vegetation removal and trimming, however, Hayward concluded that the plaintiff's water view after construction of the Modugnos' new house actually would increase by 41.2 percent. The plaintiff offered no contrary evidence to the committee.

         On the basis of Hayward's conclusions, the committee determined that it was obliged to approve the Modugnos' proposal. Nevertheless, it did not order all of the vegetation removal suggested by Hayward. In particular, it ordered one tree trimmed, instead of removed. As a result, Hayward recalculated the effect on the plaintiff's water view and determined that the plaintiff's water view still would be increased by a net 2.1 percent with the Modugnos' proposed house and the vegetation removal and trimming ordered by the committee. Following the committee's approval, the plaintiff appealed to the board, which upheld the committee's decision. The construction plans later were approved by the Stonington Planning and Zoning Commission, and the Modugnos proceeded to build their home.

         During this process, the plaintiff filed an action in the Superior Court, pursuant to § 47-278. In count one of his amended complaint, the plaintiff alleged that the committee and the association ‘‘failed to follow and enforce the provisions of Article XIV of the bylaws for construction projects as it pertains to unit owner water view protection when it approved [the] Modugnos construction application [(application)] thereby negatively impacting the primary water view of the plaintiff's unit in contravention of the bylaws.'' He also alleged, in count two, that the association was in violation of § 47-278 because ‘‘the tree trimmings [were] not being carried out by the [association] as it resolved in September, 2005.''[3] The plaintiff sought a temporary and permanent injunction enjoining the Modugnos from ‘‘commencing or continuing with the construction'' of their home, [4] an order requiring the committee and the association to follow and enforce the bylaws, monetary damages, costs and attorney's fees, as well as any other legal or equitable relief appropriate.

         The case was tried to the court over five days.[5] The plaintiff's only witness was himself. Relevant to this appeal, the plaintiff testified, among other things, that he, as a layperson, calculated the loss of his primary water view from construction of the Modugnos' house as 16.3 percent without vegetation trimming and removal and 15.4 percent with such trimming and removal. The plaintiff based his calculations on a photograph of his primary water view on which he overlaid grids to calculate the loss of his water view. He also testified about a 2002 dispute with another neighbor over the trimming of chokecherry trees, which resulted in the committee in 2005 adopting a trimming schedule for those trees. He further testified that the committee had failed to trim the trees according to that schedule.

         The defendants called four witnesses, including Hay-ward. Hayward testified about his training and experience as a licensed professional land surveyor since 1975. He then testified at length regarding the method he used to reach the conclusions he reported to the committee regarding the effect the Modugnos' construction of their new house would have on the plaintiff's primary water view. In particular, he explained how he determined that the house would reduce the plaintiff's water view by 15.4 percent without any vegetation removal or trimming and would increase the plaintiff's water view by 2.1 percent ...


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