Michael ABEL et al.
v.
Celeste M. JOHNSON
Argued
March 7, 2019.
Appeal
from the Superior Court in the judicial district of
Stamford-Nor-walk and tried to the court, Hon. Edward R.
Karazin, Jr., judge trial referee.
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Heather M. Brown-Olsen, for the appellant (defendant).
John R.
Harness, for the appellees (plaintiffs).
Keller,
Moll and Beach, Js.
OPINION
KELLER,
J.
[194
Conn.App. 122] In this action to enforce restrictive
covenants, the defendant, Celeste M. Johnson, appeals from
the judgment of the trial court, rendered following a trial
to the court, in favor of the plaintiffs, Michael Abel and
Carol Abel. The defendant claims that the court erred (1) in
its determination that the plaintiffs had standing to enforce
a restrictive covenant that appears
Page 847
in a deed that was executed by the original grantors of [194
Conn.App. 123] the parties real properties[1] and (2) by
granting the plaintiffs injunctive relief on the basis of two
restrictive covenants that appeared in a declaration of
restrictions that applied to the parties real properties. We
affirm in part and reverse in part the judgment of the trial
court.
The
record reveals the following procedural history. In their one
count complaint, the plaintiffs alleged that they own real
property located at 37 Mill Stream Road in Stamford and that
the defendant owns real property located at 59 Mill Stream
Road in Stamford. The plaintiffs alleged that their property
abutted that of the defendant, and that both properties are
located in a subdivision named the Saw Mill Association.
The
plaintiffs alleged: "The plaintiffs property and the
defendants property are subject to certain restrictive
covenants recorded in volume 792 at page 118 of the Stamford
land records which states that property shall be used for
private residential purposes only." Also, the plaintiffs
alleged: "The plaintiffs property and the defendants
property are also subject to certain restrictive covenants
recorded in volume 917 at page 114 of the Stamford land
records which state in relevant part that no animals, poultry
or water fowl, except usual pets quartered within the family
dwelling at night shall be kept on a tract." The
plaintiffs alleged that the restrictive covenants "are
common to all tracts or parcels of land located within the
area or subdivision known as the Saw Mill Association."
[194
Conn.App. 124] The plaintiffs further alleged: "The
defendant is violating the restrictive covenants by
maintaining chickens and chicken coops upon the defendants
property and by conducting a landscaping business from the
defendants property." Also, the plaintiffs alleged:
"The defendant has not obtained consent from the Saw
Mill Association ... the plaintiffs or any neighboring
property owner to maintain chickens upon the defendants
property or to conduct a landscaping business from the
defendants property." The plaintiffs alleged that they
had demanded that the defendant cease and desist the
activities at issue, but the defendant had failed to comply
with their demand. The plaintiffs alleged that they had
suffered and would continue to suffer irreparable harm as a
result of the activities at issue, and that they lacked an
adequate remedy at law. The plaintiffs sought injunctive
relief ordering the defendant to immediately cease and desist
from violating the restrictive covenants and such other
relief as the court deemed equitable and proper.
In her
answer, the defendant admitted owning 59 Mill Stream Road,
which abuts the plaintiffs property, but she denied that she
had violated any restrictive covenant by virtue of her
keeping chickens or by virtue of her landscaping business,
denied that she had failed to obtain consent to conduct her
landscaping business, and denied that the plaintiffs had
suffered harm or would continue to suffer harm as a result of
her alleged violation of the restrictive covenants at issue.
Otherwise, the defendant left the plaintiffs to their proof.
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The defendant raised four special defenses sounding in the
following legal theories: (1) equitable estoppel and waiver;
(2) unclean hands; [2] (3) ripeness, mootness, and
frustration of purpose; and (4) a claim that the action was
time barred pursuant to General Statutes § 52-575a in that
the plaintiffs did not commence the action [194 Conn.App.
125] within three years from the time that they had actual or
constructive knowledge of the alleged violations of the
restrictive covenants. By way of a reply, the plaintiffs
denied all of the special defenses.
The
trial court, Hon. Edward R. Karazin, Jr., judge
trial referee, held a trial in this matter on June 29 and 30,
2017. On August 24, 2017, the court rendered its judgment by
way of a memorandum of decision that provides, in relevant
part, as follows: "The defendant ... resides with her
husband, Eusevio Martinez, at 59 Mill Stream Road, Stamford
.... The plaintiffs ... reside at 37 Mill Stream Road,
Stamford .... The plaintiffs property abuts the defendants
property, and both parcels of land are located within a
subdivision known as the Saw Mill Association.
"The court finds the [plaintiffs] aggrieved as being ...
adjoining property [owners].
"Both properties are subject to three deed restrictions.
The first restriction, [as modified by an agreement] dated
March 27, 1957, states that said premises shall be used for
private residential purposes only (except that a residence
may be used for professional purposes by a member of a
profession occupying the same as his home to the extent that
such use is permitted from time to time by the applicable
zoning regulations of the city of Stamford). The second
restriction is dated March 15, 1961, and states that no
animals, poultry or water fowl, except usual pets quartered
within the family dwelling at night, shall be kept on a
tract. The third restriction is also dated March 15, 1961,
and states that any commercial vehicle used by an occupant
of a tract shall be kept within a garage with doors closed,
except for brief periods required for loading or unloading.
"At trial, the defendant testified that she operates a
landscaping business from her property, that chickens [194
Conn.App. 126] were on the property but have since been
removed, and that various vehicles parked on her property are
used in conjunction with her landscaping business....
"The plaintiff[s] [argue] that the three deed
restrictions listed above are part of a common development
scheme and, therefore, they are able to bring this action to
enforce the restrictions against the defendant....
"The defendant argues that the deed restrictions on her
property are the result of covenants exacted by the original
landowner from the developer of the Saw Mill Association for
the benefit and protection of his adjoining land which he
retains and, as a result, the [plaintiffs] cannot enforce the
deed restrictions. In addition, the defendant asserts four
special defenses ...." (Footnotes omitted.)
After
setting forth relevant legal principles, the court stated:
"The plaintiffs submitted multiple deeds from various
properties of the Saw Mill Association that contained the
restrictive covenant[s] they seek to enforce. In addition,
the deeds from both parties contain the deed restrictions at
issue in this case.... The court is satisfied that both the
[plaintiffs] and defendants properties are part of a common
scheme of development. Therefore, the plaintiffs may enforce
the deed restrictions against the defendant. Without a
showing by the defendant that the enforcement of
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those deed restrictions would be inequitable or that a
special defense applies, the court will enforce the
restrictions."
The
court then addressed the special defenses: "The
defendant argues that the plaintiffs are estopped from
enforcing the restrictive covenants regarding the operation
of a home business because they previously utilized services
from the landscaping business....
"Even if the plaintiffs hired the defendants company in
its capacity as a landscaping company, no evidence [194
Conn.App. 127] submitted at trial supports the proposition
that the defendant changed her position in response to the
[plaintiffs] offer of work. Nor is there evidence that the
defendant was prejudiced by accepting the work from the
[plaintiffs].... Therefore, the defendant has failed to prove
the special defense of equitable estoppel.
"The defendant also argues that with respect to the
covenant involving poultry, this action is moot and not
justiciable because the chickens that were on the property
have been removed prior to the start of trial....
"Both parties agree that the chickens have been removed
from the defendants property. In addition, both parties
agree that the chicken coops are still on the defendants
property. The defendant testified that she moved the chickens
to another property she owns and does not have plans to
return them to her property at 59 Mill Stream Road. Given
that an injunction against the defendant regarding the
enforcement of the 1961 covenant would provide practical
relief to the [plaintiffs] and would resolve any ambiguity
about whether the chickens could be returned to the property,
this court does not find the issue moot. Therefore, the
injunction regarding poultry and water fowl and the
[plaintiffs] request to order an injunction is not moot, and
the defendants special defense has not been proven.
"The
defendant argues that the plaintiffs action is barred by the
three year statute of limitations provided in ... § 52-575a.
General Statutes § 52-575a provides in relevant part: No
action or any other type of court proceedings shall be
brought to enforce a private restriction recorded in the land
records of the municipality [in which the property is
located] ... [unless such action or proceeding] shall be
commenced within three years of the time that the person
seeking to enforce such restriction had actual or
constructive [194 Conn.App. 128] knowledge of such
violation. Section 52-575a requires that a violation occur
before the statute begins to run....
"The defendant submitted evidence and elicited testimony
from [the] plaintiff Michael Abel at trial which indicated
that the plaintiffs had actual knowledge of the defendants
landscaping business. The defendant submitted checks dated in
2007 that the [plaintiffs] used to pay for landscaping
services from the defendant. In addition, [Michael Abel]
testified that he knew the defendant and her husband were
attempting to start a business and hired them in order to
help them with [the] financial troubles he knew they were
having. If this were the only evidence and testimony relevant
to the defendants breach of the restrictive covenant
involving the operation of a home business, then perhaps the
statute of limitations would apply and bar the [plaintiffs]
claim.
"Instead, the defendant has been continually expanding
the operations of her home business. These expansions involve
deliveries of mulch, chipping tree branches, maintenance of
landscaping equipment, and the parking of several employee
vehicles on her property or in front of her home. The
defendant put forth arguments and testimony that some of
these activities
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are for personal use as she operates a farm at a separate
location. This testimony conflicts with other testimony
provided by the defendant and other witnesses, which
described the expansion of the landscaping business and the
increasing number of clients the defendant serves with her
business. In addition, the plaintiff[s] provided testimony
and a letter addressed to a neighbor from the defendant that
indicated [that] the defendant was in possession of a large
delivery of mulch and that she could provide mulch in
conjunction with other landscaping services. These violations
have taken place in the three years before this suit was
brought."
[194
Conn.App. 129] After the court referred to some of the
photographic evidence submitted by the plaintiffs concerning
the activities that took place and equipment that was present
on the defendants property, the court stated: "The
exhibits and photographs clearly show that the premises are
not being solely used for residential purposes, but rather a
landscaping business. The only use for the property outside
of residential is for professional use by a member of a
profession.
"Within
the past three years, the defendants new and expanding uses
of her property in relation to her home business continue to
increase beyond the simple founding of a business and
operation from the home. Since these new violations of the
restrictive covenant have been occurring in pursuit of
expanding her home business, and continue to increase since
the time that the plaintiffs originally knew about the
business, their action is not time barred by § 52-575a. It
would not be in the interest of justice to find that once a
person violates a restrictive covenant in a minor way, and
the other party does not bring suit, they can continue
violating it in progressively larger ways once the statute of
limitations expires. For this reason, the court does not find
that the defendant has [satisfied her] burden of showing that
it would be inequitable to enforce the covenant against her.
Therefore, the statute of limitations special defense has not
been proven.
"The plaintiff[s] [argue] that the defendants vehicles
used in connection with the landscaping business are
commercial vehicles and subject to the restrictive covenant
prohibiting commercial [vehicles] from being parked outside
of a closed garage. The defendant argues that the vehicles
are her and her husbands private vehicles that are sometimes
used in connection with the business and not a commercial
vehicle for the purposes of any restrictive covenant or rules
of the Saw Mill Association."
[194
Conn.App. 130] Thereafter, the court found in light of the
evidence and relevant law that a Dodge pickup truck that the
defendant admitted was used in conjunction with her
landscaping business was a commercial vehicle for purposes of
the restrictive covenants.
The
court found that the plaintiffs had proven the allegations
set forth in their complaint and that the defendant had
failed to prove her special defenses. The court ordered the
following injunctive relief:
"(1) An injunction ordering the defendant to
immediately cease and desist from violating the restrictive
covenants;
"(2) An injunction ordering the defendant from keeping
any chickens or roosters upon the defendants property;
(the defendant is not ordered to remove the chicken coops);
"(3) An injunction ordering the [Dodge pickup truck]
to be kept within a garage with the doors closed except for
brief periods required for loading or unloading;
"(4) An injunction ordering the defendant not to
receive and/or store supplies
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such as mulch and sod at the defendants property for
resale to customers of the landscaping business;
"(5) An injunction ordering the defendant not to allow
parking of employees or independent contractor vehicles
upon the defendants property while the employee or
independent contractor is working for the landscaping
business;
"(6) An injunction ordering the defendant to stop
performing chipping of tree branches from the landscaping
business upon the defendants property;
"(7) An injunction ordering the defendant to stop
performing repairs of equipment used in connection [194
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