Weston Street Hartford, LLC v. Zebra Realty, LLC

          Argued January 22, 2019

         Procedural History

         Action for, inter alia, a temporary and permanent injunction prohibiting the defendant from maintaining a parking lot within a right-of-way, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the matter was transferred to the judicial district of Tolland; thereafter, the defendant filed a counterclaim; subsequently, the matter was tried to the court, Bright, J.; judgment for the defendant on the complaint and in part for the plaintiff on the counterclaim, from which the defendant appealed and the plaintiff cross appealed to this court. Affirmed.

          Steven Lapp, with whom, on the brief, was Daniel J. Klau, for the appellant-cross appellee (defendant).

          Mario R. Borelli, with whom, on the brief, was Frank A. Leone, for the appellee-cross appellant (plaintiff).

          DiPentima, C.J., and Sheldon and Moll, Js. ^[*]

          OPINION

          MOLL, J.

         The present case arises from a dispute between the plaintiff, Weston Street Hartford, LLC, and the defendant, Zebra Realty, LLC, concerning a right-of-way easement held by the plaintiff that runs over property owned by the defendant. The defendant has appealed and the plaintiff has cross appealed from the judgment rendered, after a court trial, on the plaintiff's complaint and the defendant's counterclaim. On appeal, the defendant claims that the trial court, in rendering judgment in favor of the plaintiff on counts one and two of the counterclaim, incorrectly determined that Alligood v. LaSaracina, 122 Conn.App. 473, 999 A.2d 836 (2010), applies to the present case and prohibits any landowner from relocating an easement without the consent of the easement holder. In the alternative, the defendant contends that the Restatement (Third), Property, Servitudes § 4.8 (3) (c), is a more logical extension of Connecticut easement law than the rule adopted by this court in Alligood.^[1] On cross appeal, the plaintiff claims that, upon finding that the defendant's use of the servient estate interfered with the plaintiff's intended use of the easement, the court should have rendered judgment in its favor on its complaint and granted its request for an in junction prohibiting interference by the defendant. We disagree with both parties' claims and, accordingly, affirm the judgment of the trial court.

         The following procedural history and facts, as found by the trial court, are relevant to the parties' claims. The plaintiff is the owner of real property located at 170 Weston Street in Hartford, and the defendant is the owner of adjacent real property located at 145 West Service Road in Hartford. The properties are located in an area zoned for commercial or industrial use. When facing Weston Street, the back right corner of the plaintiff's property abuts the rear of the defendant's property. The portion of the plaintiff's property that abuts the defendant's property was formerly known as Lot 13.

         In 1979, Gennaro Russo transferred his ownership of 145 West Service Road to Dalchard Warehouse, Inc. (Dalchard Warehouse), by deed, which provided in relevant part that 145 West Service Road was subject to a right-of-way in favor of what was then Lot 13 (right-of-way).^[2] At the time of this transfer, Russo still owned the lots that would become 170 Weston Street as it exists today, namely, Lots6through13ofanarea known as the Fox Press Subdivision. In 1980, Russo's ownership of Lots 6 through 12 was transferred to Charter Oak Bank & Trust Company (Charter Oak) by way of foreclosure by sale, and, thereafter, Russo transferred his ownership of Lot 13 to Charter Oak by quitclaim deed. The combined transferred parcels eventually became known as 170 Weston Street. Consequently, Lot 13 no longer exists as a separate lot.

         In April, 1998, Dalchard Warehouse quitclaimed its interest in 145 West Service Road to Bechard, LLC. In November, 2006, Belchard, LLC, transferred the property to the defendant by warranty deed, which provided in relevant part that 145 West Service Road was encumbered by ‘‘[a] Right-of-Way, 25 feet in width, as reserved in a deed dated August 29, 1979 and recorded in Volume 1723 at Page 277 of the Hartford Land Records.''

         In June, 2011, the plaintiff acquired 170 Weston Street. The deed transferring ownership of 170 Weston Street to the plaintiff specifically references the right-of-way, describing it as follows: ‘‘[T]he right to use a 25 foot right-of-way for the benefit of that portion of these premises previously known as Lot No. 13, for ingress and egress to West Service Road as reserved in a deed from Gennaro A. Russo, Debtor in Possession to Dalchard Warehouse, Inc. Dated August 29, 1979 and recorded in Volume 1723, Page 277 of the Hartford Land Records.''

         In August, 2011, the plaintiff entered into a three year lease agreement with Capitol Transportation, LLC (Capitol Transportation), pursuant to which Capitol Transportation was to use a portion of the plaintiff's property at 170 Weston Street as a school bus terminal and storage and transportation facility. Thereafter, approximately 135 school buses and/or vans, which were used to transport students enrolled in the Hartford public and magnet schools, were regularly parked on the plaintiff's property in an area that includes, but is not limited to, former Lot 13. At this time, the defendant operated and continued to operate an adult entertainment establishment and night club, known as the Mynx Cabaret, on its property at 145 West Service Road. The parking lot surrounding the Mynx Cabaret contained eighty-five parking spaces, including twenty-five to thirty of which were located in the right-of-way.

         In September, 2011, the plaintiff commenced an action against the defendant, seeking a temporary and permanent injunction prohibiting and restraining the defendant from maintaining a parking lot on the right-of-way or from obstructing the plaintiff's right to pass over the right-of-way. See Weston Street Hartford, LLC v. Zebra Realty, LLC, Superior Court, judicial district of Hartford, Docket No. CV-11-6025475-S (first action). The defendant filed a counterclaim, seeking, inter alia, a permanent injunction enjoining the plaintiff from asserting any right to use the right-of-way and a declaratory judgment with respect to the parties' rights to the right-of-way. See id.

         On March 11, 2013, in the first action, the trial court rendered judgment, after a court trial, in favor of the defendant on the plaintiff's complaint and in favor of the plaintiff on the defendant's counterclaim. In its memorandum of decision, the court concluded that the plaintiff had established the existence of the right-of-way but had failed to prove that the defendant's actions or inactions were materially interfering with the plaintiff's use of the right-of-way because one particular utility pole, which was located in the public right-of-way, was obstructing the right-of way, and the plaintiff had not established that the utility pole could be relocated. The court also concluded that the plaintiff's intended use would overburden the right-of-way because some of the buses that would be utilizing it would do so to travel to and from property not intended to be benefitted by the right-of-way, i.e., property other than former Lot 13, and, therefore, such use was not permitted. Additionally, the court rendered a declaratory judgment that the plaintiff was still the owner of the right-of-way and specified as follows: ‘‘The right-of-way shall run with the land benefitted, that being former Lot 13, and the land burdened, that being 145 West Service Road, whether there is other access to former Lot 13. The right-of-way to be maintained by the owner or owners of former Lot 13. The right-of-way may not be used to benefit any other property into which former Lot 13 was merged.''^[3]

         Following the conclusion of the first action, the plaintiff began considering alternative uses for former Lot 13 involving the right-of-way. Between July and November, 2014, the plaintiff arranged for and paid over $60, 000 to move three utility poles outside of the right-of-way, including the utility pole that was in the city of Hartford's (city) control. In March or April, 2015, the plaintiff notified the defendant that it was developing a new plan for former Lot 13.

         In August, 2015, the plaintiff commenced the present action against the defendant. In its complaint, the plaintiff alleged, inter alia, that it was the owner of the right-of-way, that the defendant materially interfered and continues to materially interfere with the plaintiff's use of the right-of-way by maintaining a parking lot in the right-of-way and by failing to sign an application or a letter of authorization enabling the plaintiff to obtain a curb cut permit from the city, and that such interference has caused and will continue to cause irreparable injury to the plaintiff. The plaintiff sought the following relief: (1)a temporary and permanent injunction prohibiting and restraining the defendant from maintaining a parking lot within the right-of-way or from obstructing the plaintiff's right to use the right-of-way; (2) an order requiring the defendant to sign documentation that may be required to enable the plaintiff to obtain a curb cut; and (3) costs.

         On November 20, 2015, the defendant filed an answer, special defenses, and a five count counterclaim. As part of its first special defense, the defendant alleged that the plaintiff's intended use will overburden and constitutes an impermissible misuse of the right-of-way. In its counterclaim, the defendant alleged, inter alia, that: it has a right to relocate the right-of-way (count one); it would be equitable to deny the plaintiff's request for injunctive relief and to enter injunctive relief in favor of the defendant, compelling the plaintiff to release the right-of-way upon its relocation by the defendant (count two); the defendant was not materially interfering with the plaintiff's use of the right-of-way (count three); the defendant has no duty to sign curb cut permit applications or otherwise authorize the plaintiff to make unnecessary alterations and/or modifications to the defendant's property to make use of the right-of-way (count four); and a permanent injunction should enter prohibiting the plaintiff from making unnecessary alterations and/or modifications to the defendant's property to access the right-of-way (count five). The defendant sought a variety of relief, most relevantly: (1) a declaratory judgment that it has the right to relocate the right-of-way on its property, at its own cost and expense, such that the relocated right-of-way is substantially equal in dimension, utility, and convenience to the plaintiff as the current right-of-way and that the relocated right-of-way would not impose any additional burden on the plaintiff; and (2) a permanent injunction ordering the plaintiff to release the right-of-way upon its relocation by the defendant in the manner described previously.^[4]

         Meanwhile, in October, 2015, the plaintiff submitted a curb cut application to the city, which the city deemed unacceptable.^[5] A curb cut was not necessary for the plaintiff to gain access to the right-of-way.^[6] In November, 2015, with the assistance of a surveyor, the plaintiff began preparing a site plan for former Lot 13 upon which the plaintiff intended to construct a parking lot that would be accessed using the right-of-way.

         In January, 2016, the defendant prepared two concept plans to relocate the right-of-way on its property. The defendant intended to reconfigure its parking area to maintain approximately the same number of parking spaces utilized by patrons while also providing the plaintiff with access across its property to former Lot 13. The plaintiff had no interest in either alternative, however, and would not consider any alternative to the right-of-way. The defendant did not establish that the city would approve these alternative concept plans.

         On March 15, 2016, the plaintiff submitted a planning and zoning application to the city for approval of its site plan. According to the site plan, former Lot 13 would serve as a parking lot, containing seventy-nine parking spaces, and would be fenced off from the remainder of 170 Weston Street such that the only means of access to the parking lot would be by way of the right-of-way. The plaintiff's current tenants, Specialty Corporation, Inc. (Specialty), ^[7] and Hertz Corporation (Hertz), which operate a school bus depot and sell out of service rental cars, respectively, would use the parking lot as an accessory to their principal uses of 170 Weston Street. On June 20, 2016, the plaintiff submitted a revised site plan. Per the revised site plan, the plaintiff intended for the parking lot to be used for passenger vehicle parking for tenants, employees, and invitees of Specialty and Hertz, and as passenger vehicle parking for concert and sporting event attendees. On July 12, 2016, the city approved the revised site plan. The plaintiff did not establish that it obtained from the city a permit or license to utilize former Lot 13 as a parking lot for public use, however.

         On April 18, 2017, following a court trial held on July 12 and 13, 2016, and the submission of post trial briefs from both parties, the court issued a memorandum of decision. With respect to the plaintiff's complaint, the court rendered judgment in favor of the defendant, concluding, inter alia, that the plaintiff was not entitled to injunctive relief because it had failed to establish that the defendant's actions were causing imminent harm or currently interfering with the plaintiff's use of the right-of-way. With respect to the defendant's counterclaim, the court rendered judgment in favor of the plaintiff on counts one, two, and five, dismissed the third count, and, with respect to the fourth ...