Lyme Land Conservation Trust, Inc. v. Platner ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
LYME LAND CONSERVATION TRUST, INC.
v. BEVERLY PLATNER ET AL.
(SC 19797)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued February 21—officially released May 23, 2017
Brendon P. Levesque, with whom was Karen L.
Dowd, for the appellant (named defendant).
John F. Pritchard, pro hac vice, with whom were
Tracy M. Collins and, on the brief, Edward B. O’Con-
nell, for the appellee (plaintiff).
Gary W. Hawes, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Jane R. Rosenberg, assistant attorney general,
for the appellee (intervening plaintiff).
Opinion
ROGERS, C. J. This case raises the questions of
whether a conservation restriction on private property
was violated by the owner of that property and, if so,
whether the remedies ordered by the trial court were
proper. The defendant Beverly Platner1 appeals from
the judgment of the trial court awarding legal and equi-
table relief to the plaintiff Lyme Land Conservation
Trust, Inc.,2 after concluding that the defendant had
violated a conservation restriction granted to the plain-
tiff by a former owner of the defendant’s property. The
defendant claims that the trial court improperly found
violations of the conservation restriction by misinter-
preting it and improperly ordered relief that was either
legally unauthorized or lacking in evidentiary support.
We agree with the trial court’s interpretation of the
conservation restriction and its consequent finding that
the defendant had violated it in multiple respects, and
we see no impropriety with respect to the portion of
the court’s judgment awarding the plaintiff equitable
relief. We agree with the defendant, however, that the
court’s award of punitive damages was noncompliant
with the authorizing provision, General Statutes § 52-
560a (d), and that its award of attorney’s fees, in one
respect, was improper. Accordingly, we affirm in part
and reverse in part the judgment of the trial court.
The following facts, which either were found by the
trial court or are not disputed, and procedural history
are relevant to the appeal. The defendant is the owner
of 66 Selden Road in Lyme (property). She purchased
the property in May, 2007. By virtue of a ‘‘Declaration
of Restrictive Covenants’’ (declaration) executed in
1981 by a former owner of the property and recorded
in the Lyme land records, substantial portions of the
property are protected by a conservation restriction,
as defined by General Statutes § 47-42a.3 The plaintiff is
the owner of that conservation restriction.4 The general
purpose of the restriction, as stated in the declaration,
is to ‘‘assure retention of the premises predominantly
in their natural, scenic or open condition and in agricul-
tural, farming, forest and open space use . . . .’’5
The property, which borders on the Connecticut
River, Selden Creek and Selden Cove, measures approx-
imately 18.7 acres. It is comprised of a protected area
of about 14.3 acres, which is subject to the conservation
restriction, and an unprotected area of about 4.4 acres,
which is not subject to the conservation restriction.
The defendant’s house is located on the unprotected
area of the property. The protected area of the property
includes a large open space to the north and west of
the house (meadow) and a smaller forested area to the
south of the house (woodlands).
Fleur Hahne Lawrence, who sold the property to the
defendant and, before that, had owned it since 1997,
had maintained the meadow by mowing it twice a year,
once at the end of July when birds had finished nesting
and again around Thanksgiving. A previous owner had
agreed to a similar mowing regimen. Lawrence also had
four or five trees removed from the woodlands after
they had been damaged by beavers, but otherwise did
not cut or mow there. Lawrence had employed Novak
Brothers Landscaping (Novak) to do landscaping work,
but only in the unprotected area around the house.
Lawrence’s limited activities in the protected area were
consistent with the plaintiff’s view of the declaration.
After purchasing the property, the defendant also
employed Novak for landscaping work, but she did not
contain that work to the unprotected area. Beginning
in 2007, and continuing over the next few years, the
defendant began mowing the entire meadow area fre-
quently, sometimes twice a week. She also installed an
irrigation system in the meadow. The defendant added
topsoil to the meadow, aerated it, and hydroseeded
and slice seeded it with grass seed typically used for
residential lawns. She retained a plant health care con-
tractor who applied lime, fertilizers, fungicides, herbi-
cides and pesticides to the meadow. Ultimately, the
grasses previously existing in the meadow were elimi-
nated and replaced with the new grasses planted by
the defendant.
The defendant also planted many ornamental shrubs,
plants and flowers throughout the meadow. She created
‘‘tree rings’’ to house some of these plantings by remov-
ing truckloads of grass and soil from around trees in
the meadow. In the woodlands, the defendant engaged
in mowing the understory.6 After obtaining a permit
from the Lyme Inland Wetlands Commission, the defen-
dant, over the plaintiff’s objections, relocated her drive-
way. The new driveway, in part, encroached on the
protected area. Finally, the defendant spread sand to
create an artificial beach in a portion of the protected
area that bordered the Connecticut River.
The plaintiff was aware of the foregoing activities
and, for a time, attempted to persuade the defendant
that they were not permitted by the declaration. Those
efforts were not successful. On October 14, 2009, the
plaintiff filed this action, initially seeking a declaratory
judgment as to the parties’ rights under the declaration.
It subsequently amended its complaint to allege actual
or intended violations of the declaration. Specifically,
in its second amended complaint dated January 15,
2013, the plaintiff averred that the defendant, contrary
to the terms of the declaration, had: constructed a drive-
way in the protected area; cut and thinned the wood-
lands understory; destroyed existing native grasses and
vegetation in the protected area and replaced them with
lawn and ornamental landscaping; installed an irriga-
tion system in the protected area; and dumped truck-
loads of dirt in the protected area. The plaintiff alleged
further that those activities constituted a wilful viola-
tion of § 52-560a.7 It requested as relief, inter alia, an
injunction barring the defendant from further violations
and requiring restoration of the property to its earlier
condition, as well as statutory damages and attorney’s
fees pursuant to § 52-560a. See General Statutes § 52-
560a (c) and (d); see also parts IV and V of this opinion.
Following a bench trial, the trial court, Hon. Joseph
Q. Koletsky, judge trial referee, held that the defendant
deliberately had violated the restrictions set forth in
the declaration, which were unambiguous, and, further,
that she had violated § 52-560a. In the court’s view, the
defendant had ‘‘destroy[ed]’’ the protected area on the
property, with the ‘‘intent . . . to incorporate the [pro-
tected] area into the [unprotected] area for aesthetic
purposes as [she] desired . . . without regard to those
restrictions,’’ thereby making the protected and unpro-
tected areas ‘‘indistinguishable.’’ The court described
the defendant’s actions of mowing and seeding the
meadow until it eventually resembled a lawn, and
opined that those ‘‘actions were wilful and caused great
damage to the protected area’s natural condition, which
the defendant was obligated to retain.’’ The court fur-
ther noted the defendant’s ‘‘extensive landscaping of
all of the protected area,’’ which included, for example,
the placement of tons of soil and sand, as well as ‘‘huge
amounts of fertilizer,’’ thereon. As to the woodlands,
the court was of the opinion that the defendant had
not simply mowed grass, but rather, had ‘‘destroyed
considerable [and diverse] vegetation . . . .’’
According to the court, the defendant, by selectively
reading language in the declaration in isolation to justify
her actions, had ‘‘completely subvert[ed] and eviscer-
ate[d] the clear purpose of the conservation restric-
tion.’’ Consequently, the court awarded the plaintiff
damages of $350,000 pursuant to § 52-560a (d), as well
as attorney’s fees of $300,000.
The court also ordered injunctive relief, specifically,
that the defendant restore the property to the condition
that had existed prior to her taking ownership of it.
After holding an additional hearing at which various
experts testified, the court outlined the particulars of
that restoration, which included: cessation of frequent
mowing in the meadow and replanting it with small
plant ‘‘ ‘plugs’ ’’ or similar devices to restore it to a
natural state not requiring chemical fertilizers; removal
of the heads from the irrigation system in the meadow
to render it nonfunctional; removal of the tree rings;
discontinuation of mowing in the woodlands to return
them to their earlier, natural condition; and remediation
of the artificial beach created by the defendant. After
a further hearing at which the parties submitted more
specific planting plans, the court ordered the defendant
to comply with the plan that had been submitted by the
plaintiff. The court also accepted the parties’ stipulation
regarding a ‘‘land swap’’ as a remedy for the encroach-
ment on the protected area by the defendant’s relocated
driveway, the impropriety of which the court had
deemed unquestionable.8 This appeal followed.9
I
The defendant claims first that the trial court improp-
erly concluded that she had violated § 52-560a (b),
which disallows encroachment on a conservation ease-
ment ‘‘without . . . legal authorization,’’ because the
activities that she undertook in the protected area were
authorized by the declaration. She contends that the
court misinterpreted and misapplied the terms of the
declaration to conclude otherwise. In the defendant’s
view, the plain language of the declaration did not pro-
hibit her conduct but, to the contrary, expressly permit-
ted it. We do not agree.
We begin with the standard of review and applicable
legal principles. To determine whether the defendant’s
activities constituted a violation of the conservation
restriction and, by extension, a violation of § 52-560a
(b), we look to the language of the declaration that
created that restriction. Our review of the trial court’s
construction of that document is plenary. Wykeham
Rise, LLC v. Federer, 305 Conn. 448, 457, 52 A.3d 702
(2012). To determine what the declaration allows or
disallows, we ‘‘must consider the language and terms
of [that] instrument as a whole. . . . Our basic rule of
construction is that recognition will be given to the
expressed intention of the parties to a deed or other
conveyance, and that it shall, if possible, be so con-
strued as to effectuate the intent of the parties. . . .
In arriving at the intent expressed . . . in the language
used, however, it is always admissible to consider the
situation of the parties and the circumstances con-
nected with the transaction, and every part of the writ-
ing should be considered with the help of that
evidence.’’ (Internal quotation marks omitted.) Id.,
456–57.
At the same time, however, when a restrictive cove-
nant is expressed without ambiguity, it will be given
effect according to its terms. Morgenbesser v. Aquarion
Water Co. of Connecticut, 276 Conn. 825, 829, 888 A.2d
1078 (2006). ‘‘[C]ontractual terms are to be given their
ordinary meaning and when the intention conveyed is
clear and unambiguous, there is no room for construc-
tion.’’ (Internal quotation marks omitted.) Gino’s Pizza
of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138,
475 A.2d 305 (1984).
The declaration is comprised of an introductory sec-
tion, which indicates that the declaration is in favor of,
and enforceable by, the plaintiff as the grantee, and
four enumerated articles. Article I is captioned,
‘‘Restrictions,’’ and lists a number of things that are not
permitted in the protected area.10 Article II is captioned,
‘‘Reservations,’’ and lists a number of rights that, ‘‘[a]ny-
thing in ARTICLE I above to the contrary notwith-
standing, the [g]rantor reserves to himself and his heirs
and assigns . . . .’’11 (Emphasis added.) Article III con-
tains miscellaneous provisions that, aside from the gen-
eral purpose of the restriction previously stated; see
footnote 5 of this opinion; are not relevant to the ques-
tion at hand, and article IV concerns amendment of
the declaration.
The defendant argues that the preliminary language
to the reservations in the declaration, emphasized in
the foregoing paragraph, makes clear that those reser-
vations take precedence over the restrictions; in other
words, if an owner of the property is engaged in one
of the activities listed in the reservations, it is of no
moment that such activity violates one or more of the
restrictions. The plaintiff does not dispute this construc-
tion, and we agree that the language used and structure
of the declaration plainly and unambiguously support
it.12 Additionally, nothing expressly stated in the trial
court’s memoranda of decision indicates that the trial
court reasoned otherwise. Accordingly, to establish that
the court improperly allowed the restrictions in the
declaration to trump the reservations, the defendant
must show that the activities that the court found to
be violations, although contrary to the restrictions, nev-
ertheless were encompassed by the reservations. This
she has not done.
To reiterate, the trial court found that the defendant
improperly had placed tons of topsoil in the meadow
to facilitate the growing of grass and tons of sand in
an area along the riverfront to create an artificial beach,
and that she improperly had created tree rings in the
meadow. These activities clearly violated, respectively,
the restriction set forth in § 1.2 of the declaration, which
provides in relevant part that ‘‘[n]o soil, loam, peat,
sand, gravel, rock or other mineral substance . . . will
be placed, stored or permitted to remain’’ upon the
protected area, and that set forth in § 1.3 of the declara-
tion, which provides that ‘‘[n]o soil, loam, peat, sand,
gravel, rock, mineral substance or other earth product
or material shall be excavated or removed’’ from the
protected area. (Emphasis added.) The court found fur-
ther that the defendant had engaged in extensive mow-
ing and seeding in the meadow, accompanied by the
installation of an irrigation system and application of
huge amounts of fertilizer, in order to eliminate the
existing meadow grasses and replace them with a resi-
dential type lawn similar to that in the unprotected
area.13 These activities clearly violated the restriction
set forth in § 1.4 of the declaration, which provides that
‘‘[n]o trees, grasses or other vegetation thereon shall
be cleared or otherwise destroyed.’’ (Emphasis added.)
As to the woodlands, the court concluded that the
defendant had destroyed considerable and diverse vege-
tation in the understory.14 This activity clearly ran afoul
of the proscription in § 1.4 against the destruction of
vegetation, as well as of the restriction set forth in § 1.7
of the declaration, which requires, with an exception
not applicable here, that ‘‘all woodland [in the protected
area] shall be kept in a state of natural wilderness.’’
Finally, there is no dispute that the defendant’s reloca-
tion of her driveway over a portion of the protected
area is contrary to the restriction set forth in § 1.1 of
the declaration, which bars the placement of various
temporary or permanent structures in the protected
area.
The question remains whether the foregoing activities
were, nevertheless, permitted by an article II reserva-
tion. The trial court acknowledged the only arguably
applicable one, set forth in § 2.2 of the declaration,
and opined, in short, that the defendant had focused
myopically, and unjustifiably, on one phrase therein to
defend the bulk of her activities in the protected area.
Section 2.2 provides that, notwithstanding the restric-
tions of article I, the defendant retains the right ‘‘[t]o
conduct and engage in the cultivation and harvesting
of crops, flowers and hay; the planting of trees and
shrubs and the mowing of grass; the grazing of live-
stock; and the construction and maintenance of fences
necessary in connection therewith.’’ (Emphasis added.)
As indicated, the phrase on which the defendant had
focused, and continues to focus, is ‘‘mowing of grass.’’
As should be obvious, and as the trial court concluded,
the defendant’s activities in the protected area went
well beyond the ‘‘mowing of grass.’’ Had the defendant
simply mowed grass, there might be, as the trial court
allowed, a valid claim that she had not knowingly vio-
lated the declaration. Instead, however, the defendant’s
mowing in the meadow was incidental to another activ-
ity that most assuredly was not permitted by § 2.2 or
any other reservation, namely, the installation of a resi-
dential lawn. And, as the trial court found, her mowing
in the woodlands was not limited to grass, as permitted
by the reservations, but rather, extended to the larger
plant life existing in the understory. As to the defen-
dant’s other activities that clearly violated the restric-
tions—the encroaching driveway and the placement of
sand and topsoil—the defendant does not even attempt
to explain how they are saved by the reservations.15
The defendant contends additionally that the trial
court improperly added restrictions that were not stated
expressly in the declaration. In the defendant’s view,
because the declaration did not explicitly disallow fer-
tilizing, planting new grass or irrigation, she did not
violate it by engaging in those activities. This argument
is meritless. First, all of the cited activities were
improper because they were intended to destroy, and
in fact did destroy, the grasses and other vegetation in
the protected area in violation of § 1.4 of the restric-
tions. See footnote 10 of this opinion. It is irrelevant
that the methods of destruction were not described
with particularity in the declaration, as the destruction
itself clearly was prohibited. Second, none of those
activities are allowed, nevertheless, due to their inclu-
sion in §§ 2.1 through 2.4 of the reservations, which
detail particular rights that are retained for the proper-
ty’s owner. See footnote 11 of this opinion. Finally, as
to additional rights that are not explicitly reserved, the
final reservation set forth in § 2.5 of the declaration
makes abundantly clear that the owner may ‘‘continue
the use of the [p]rotected [a]reas for all purposes not
inconsistent with the restrictions set forth in ARTICLE
I above.’’ (Emphasis added.) Because the cited activities
were wholly inconsistent with the prohibition on the
destruction of grass and other vegetation, they are not
saved by § 2.5. For the foregoing reasons, the defen-
dant’s claim that the trial court improperly interpreted
and applied the terms of the declaration fails.
II
The defendant claims next that the trial court lacked
authority to order a restoration plan as part of its award
of relief. According to the defendant, neither the decla-
ration nor General Statutes § 47-42c or § 52-560a pro-
vides a basis for the court’s remedy. In the defendant’s
view, the court’s only option was to order that the
property be returned to the precise condition it was in
prior to her violations of the declaration, which
included the presence of invasive, nonnative species,
whereas the plan approved by the court aimed to recre-
ate more natural conditions generally and omitted such
species. We are not persuaded.
As previously explained, our review of the trial
court’s construction of the declaration is plenary; see
Wykeham Rise, LLC v. Federer, supra, 305 Conn. 457;
as is our review of the court’s interpretation of a statute.
Santorso v. Bristol Hospital, 308 Conn. 338, 355, 63
A.3d 940 (2013). In interpreting a statute, we are guided
by the strictures of General Statutes § 1-2z.16
There are three potential sources for the court’s
authority to order the relief that it did. Section 3.5 of
the declaration provides in relevant part ‘‘that a breach
of this covenant in respect of any restriction herein set
forth may be enforced by the [plaintiff] by injunctive
relief . . . .’’ (Emphasis added.) Similarly, § 47-42c
provides in relevant part that conservation restrictions
‘‘may be enforced by injunction or proceedings in
equity. . . .’’ (Emphasis added.) Finally, § 52-560a (c),
which authorizes actions by holders of conservation
easements against parties who encroach on those ease-
ments, provides in relevant part that, if the plaintiff
prevails, ‘‘the court may award reasonable attorney’s
fees and costs and such injunctive or equitable relief
as the court deems appropriate.’’ (Emphasis added.)
By broadly allowing for injunctive and equitable
relief, the declaration and the two statutes clearly and
unambiguously support the propriety of the trial court’s
order. An injunction is an order for a party to do ‘‘some
specified act or . . . to undo some wrong or injury’’;
Black’s Law Dictionary (6th Ed. 1990); and is an equita-
ble remedy whose issuance depends on a balancing of
the equities between the parties. Hartford Electric
Light Co. v. Levitz, 173 Conn. 15, 21, 376 A.2d 381
(1977). Similarly, a court’s power to order equitable
relief is broad and flexible. ‘‘[C]ourts exercising their
equitable powers are charged with formulating fair and
practical remedies appropriate to the specific dispute.
. . . In doing equity, [a] court has the power to adapt
equitable remedies to the particular circumstances of
each particular case. . . . [E]quitable discretion is not
governed by fixed principles and definite rules . . . .
Rather, implicit therein is conscientious judgment
directed by law and reason and looking to a just result.’’
(Citations omitted; internal quotation marks omitted.)
Wall Systems, Inc. v. Pompa, 324 Conn. 718, 736, 154
A.3d 989 (2017). Here, the court entered a common-
sense order that directed the property to be remediated
in a way that would approximate its earlier condition,
but absent elements that all parties considered to be
undesirable. This order was well within the court’s
authority.
The defendant ignores these broad grants of power
to fashion appropriate relief and instead focuses on
other language in § 52-560a (c) that directs courts to
order the restoration of land to its prior condition,
arguing for a strict construction of that language. Sec-
tion 52-560a (c), however, authorizes injunctive and
equitable relief ‘‘[i]n addition’’ to that remedy, and § 47-
42c and the declaration provide independent authority
for such relief. Consequently, the defendant’s claim
fails.
III
The defendant claims additionally that aspects of the
restoration plan ordered by the trial court lacked suffi-
cient evidentiary support. Specifically, she contends
that there was no evidence of the condition of the prop-
erty in 2007 to provide a benchmark for the remediation,
nor was there adequate proof that she had placed sand
in the beach area, so as to justify the order that that
area be remediated. We disagree.
The defendant’s claim challenges the trial court’s fac-
tual findings. ‘‘[T]he trial court’s findings are binding
upon this court unless they are clearly erroneous in
light of the evidence and the pleadings in the record
as a whole. . . . We cannot retry the facts or pass on
the credibility of the witnesses. . . . A finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Citation omitted;
internal quotation marks omitted.) CCT Communica-
tions, Inc. v. Zone Telecom, Inc., 324 Conn. 654, 673–74,
153 A.3d 1249 (2017).
Because factual findings and credibility determina-
tions are squarely within the trial court’s purview, we
afford them great deference. Connecticut Light &
Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d
470 (2016). ‘‘In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Id. Finally, a finding
is not clearly erroneous merely because it relies on
circumstantial evidence. See Rawls v. Progressive
Northern Ins. Co., 310 Conn. 768, 777, 83 A.3d 576 (2014)
(‘‘there is no distinction between direct and circumstan-
tial evidence so far as probative force is concerned’’
[internal quotation marks omitted]). ‘‘[T]riers of fact
must often rely on circumstantial evidence and draw
inferences from it. . . . Proof of a material fact by
inference need not be so conclusive as to exclude every
other hypothesis. It is sufficient if the evidence pro-
duces in the mind of the trier a reasonable belief in
the probability of the existence of the material fact.’’
(Internal quotation marks omitted.) Palkimas v. Fer-
nandez, 159 Conn. App. 129, 133, 122 A.3d 704 (2015).
In short, the court, as fact finder, ‘‘may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) State v. Buhl, 321
Conn. 688, 711–12, 138 A.3d 868 (2016).
At trial, the plaintiff presented the expert testimony
of, and a report prepared by, Glen Dreyer, a botanist.
Dreyer opined both as to the probable conditions on
the property in 2007 and the best way to restore the
property to those conditions. He disclosed the
resources he had consulted to arrive at the former deter-
mination, which included: historical maps and photo-
graphs from various years preceding 2007; a report from
a November, 2007 site inspection of the property by
an environmental consultant hired by the plaintiff; his
examination of the plant life existing on land adjacent
to the defendant’s property and his more than thirty
years of experience of observing vegetation in south-
eastern Connecticut. Some of the material on which
Dreyer relied also was in evidence, as well as photo-
graphs of the property taken by representatives of the
plaintiff during a fall, 2007 site visit. Because the trial
court properly could have credited Dreyer’s testimony,
his report and the other evidence, and made reasonable
inferences therefrom, its findings as to the condition
of the property in 2007, on which its remediation order
was based, were not clearly erroneous. See In re Nevaeh
W., 317 Conn. 723, 737, 120 A.3d 1177 (2015) (trial court
free to believe or disbelieve expert testimony, in whole
or in part, when making own independent determina-
tion of issue). To the extent the defendant contends
that the plaintiff was required to provide a complete
inventory of every plant species existing in the pro-
tected area in 2007, we disagree that the plaintiff’s bur-
den of proof in this civil action was so onerous.
As to the artificial beach that the trial court ordered
remediated, an invoice from Novak in evidence indi-
cates that, on August 3, 2007, twenty-two and one-half
tons of sand was delivered to the property and, further,
that Novak employees performed the following labor:
‘‘Weeded beach and spread sand, trimmed grapevine,
backfilled bluestone walkway and trimmed dead
wood.’’ (Emphasis added.) Separately authored reports
of a November, 2007 site visit by a representative of
the plaintiff and the plaintiff’s environmental consultant
both indicated that the preexisting natural beach had
been expanded landward by twenty-five to thirty feet
beyond the river’s high tide line. A photograph taken
at that visit, when compared with an aerial photograph
taken earlier in 2007, appears to support this assess-
ment. Taken together, this evidence provides adequate
support for the court’s finding that extra sand had been
deposited on the beach.
The defendant attempts to undermine this evidence
by quoting selectively from the testimony of the owner
of Novak and that of her husband, but it is clear from
a fuller examination of that testimony that neither man
truly knew where the sand had been spread and, to the
extent they speculated that it was elsewhere, they did
not even agree on an alternative location. Accordingly,
we conclude that the defendant has not met her burden
of showing that the trial court’s finding on this issue
was clearly erroneous. For the foregoing reasons, the
defendant’s third claim fails.
IV
The defendant next challenges the trial court’s award
of attorney’s fees pursuant to § 52-560a (c) and the
declaration. She claims that the attorney’s fees award
improperly includes amounts that the plaintiff incurred
in separate proceedings before the Lyme Inland Wet-
lands Commission (commission) and an appeal taken
therefrom, as well as in the prosecution of a claim for
declaratory relief at the inception of this litigation that
it subsequently withdrew. We agree with the defendant
in part.
The following additional procedural history is rele-
vant. As previously stated, the plaintiff filed this action
on October 14, 2009, initially seeking a declaratory judg-
ment on certain questions pertaining to the conserva-
tion restriction and the protected area. On January 9,
2010, the defendant filed an application with the com-
mission seeking to relocate her driveway in a manner
that would encroach, in part, on the protected area.
The plaintiff appeared before the commission and
opposed the defendant’s application, but on April 21,
2010, the commission granted the application. The
plaintiff thereafter appealed from the commission’s
decision pursuant to General Statutes § 8-8, but with-
drew that appeal in November, 2010, because the con-
struction of the driveway was complete. On June 9,
2011, the trial court, Cosgrove, J., permitted the plaintiff
to file an amended complaint withdrawing its declara-
tory judgment claim and instead seeking injunctive and
other relief for actual violations of the declaration, as
previously described. The plaintiff ultimately prevailed
on the amended complaint.
In addition to equitable relief and damages, the trial
court awarded the plaintiff attorney’s fees of $300,000,
which included approximately $12,000 attributable to
the proceedings before the commission and the appeal
therefrom, and approximately $18,000 attributable to
the present action prior to the amendment of the com-
plaint. It cited both § 52-560a (c) and the declaration
as authority for that award, and, over the defendant’s
objections, concluded that the fees incurred in the pro-
ceedings involving the commission and those arising
from the declaratory judgment portion of the present
case both fell within their purview. In the court’s view,
the plaintiff initially had attempted to resolve the matter
amicably, but the defendant’s increasing encroachment
activities had required a change in strategy.
On appeal, the defendant contends that the award of
attorney’s fees should have been limited to those fees
attributable to the portion of the present action postdat-
ing the amendment of the complaint, during which the
plaintiff sought injunctive relief and damages. We agree
with the defendant to a limited degree. Specifically, we
conclude that the court improperly included in its award
attorney’s fees attributable to the proceedings involving
the commission, but properly included in that award
fees attributable to the declaratory judgment portion
of this action.
This court reviews a trial court’s decision to award
attorney’s fees for an abuse of discretion. ACMAT Corp.
v. Greater New York Mutual Ins. Co., 282 Conn. 576,
582, 923 A.2d 697 (2007). ‘‘This standard applies to the
amount of fees awarded . . . and also to the trial
court’s determination of the factual predicate justifying
the award. . . . Under the abuse of discretion standard
of review, [w]e will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion. . . . [Thus,
our] review of such rulings is limited to the questions
of whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) Id.
When it comes to attorney’s fees, Connecticut follows
the American rule. Id. Pursuant to that rule, ‘‘attorney’s
fees and ordinary expenses and burdens of litigation
are not allowed to the successful party absent a contrac-
tual or statutory exception.’’ (Internal quotation marks
omitted.) Id.
The trial court referenced both the declaration and
§ 52-560a (c) as authority for its award of attorney’s
fees. Section 3.6 of the declaration provides in relevant
part: ‘‘If any action, whether at law or in equity, shall
be brought to enforce the covenant arising pursuant to
this declaration or to prevent an anticipatory breach
thereof, and if any relief is granted in favor of the plain-
tiff in said action, the defendant . . . shall be obliged
to pay all court costs and the reasonable attorneys’ fees
of the plaintiff therein . . . .’’
We conclude that this provision is broad enough to
encompass fees for the entire underlying action, both
before and after the amendment of the complaint.
Although the plaintiff initially sought to ‘‘prevent an
anticipatory breach’’ of the declaration by obtaining a
declaratory judgment, the defendant’s increasing activi-
ties in the protected area ultimately required the plain-
tiff to seek ‘‘enforce[ment]’’ of the restrictive covenants
included in the declaration via claims for equitable relief
and damages. These various strategies were part and
parcel of the same action, however, and the plaintiff
clearly prevailed in ‘‘said action.’’
We agree with the defendant, however, that the fees
incurred by the plaintiff when appearing before the
commission, and appealing from the decision thereof,
are not recoverable under § 3.6 of the declaration. The
provision provides, in short, that a party may recover
attorney’s fees when it both (1) brings an action to
enforce or prevent an anticipatory breach of the decla-
ration, and (2) obtains relief ‘‘in said action . . . .’’
(Emphasis added.) In common parlance, ‘‘ ‘[s]aid’
means ‘before-mentioned; already spoken of.’ ’’ Trum-
bull Electric Mfg. Co. v. John Cooke Co., 130 Conn. 12,
15, 31 A.2d 393 (1943). Here, even assuming that the
plaintiff’s participation in, and appeal from, the commis-
sion proceedings all comprise the bringing of an action,
as contemplated by the declaration, the plaintiff never
obtained relief in that action, but ultimately withdrew
it and chose to pursue relief in the present action
instead. In short, the requirements for the recovery of
fees pursuant to the declaration were unmet.
As to a possible statutory basis for the portion of the
fee award attributable to the commission proceedings
and the plaintiff’s appeal therefrom, § 52-560a (c) pro-
vides in relevant part that a nonprofit land conservation
organization, such as the plaintiff, that holds a conserva-
tion easement ‘‘may bring an action in the superior
court . . . against any person who [encroaches on the
easement] . . . . The court shall order any person who
[encroaches on the easement] to restore the land to its
condition as it existed prior to [the encroachment]
. . . . In addition, the court may award reasonable
attorney’s fees and costs and such injunctive or equita-
ble relief as the court deems appropriate.’’ (Emphasis
added.)
This statute, by its plain terms and read as a whole,
authorizes the holder of a conservation easement to
bring an action against one who encroaches on the
easement and contemplates the recovery of attorney’s
fees in that action. It cannot be fairly read to encompass
fees incurred in an entirely separate administrative
appeal brought pursuant to § 8-8. Because neither the
declaration nor § 52-560a (c) authorizes the portion of
the trial court’s award of attorney’s fees attributable to
the proceedings before the commission and the appeal
therefrom, that portion of the award was improper.
V
The defendant’s final claim is that the trial court
improperly awarded damages pursuant to § 52-560a
(d).17 According to the defendant, there was no evidence
concerning the cost of the restoration plan that the
court ultimately ordered, which is a necessary starting
point for a calculation of damages under the statute.
Relatedly, the defendant claims, the court improperly
chose a fixed amount of damages, rather than one
derived from actual restoration costs, in contravention
of the plain terms of § 52-560a (d). We agree with the
defendant that the court’s damages award did not com-
ply with § 52-560a (d).
The following additional procedural history is rele-
vant. At trial, the plaintiff’s expert witness, Dreyer, pro-
posed a remediation plan that would restore the
meadow to its previous condition by first removing the
irrigation system and the lawn that the defendant had
created, the latter through use of a sod cutter, then
replanting the area with various native species and
returning to an infrequent mowing regimen. As to the
woodlands, Dreyer recommended the cessation of
mowing so that the understory could be reestablished,
and the planting of native shrubs. Dreyer estimated that
his plan would cost between $90,000 and $100,000.
In its initial memorandum of decision issued shortly
after the trial concluded, the trial court awarded the
plaintiff damages of $350,000 pursuant to § 52-560a (d).
The court credited Dreyer’s estimate of $100,000, then
applied a multiplier of three and one-half. Then, to
encourage that the remediation be done properly even
if the actual cost were to exceed Dreyer’s estimate, the
court further ordered ‘‘that this damage award be a
fixed sum (or if the statute requires a precise multiplier,
such a multiplier that will result in damages of $350,000)
so that any increased costs that the defendant may wish
to bear over what the court will require will not increase
the damage amount.’’ The court concluded its decision
by ordering a further hearing to address the precise
manner and timing of the restoration plan.
At the subsequent hearing, Dreyer made recommen-
dations similar to those he had made at trial, and also
advocated for removal of the beach sand, while experts
presented by the defendant recommended a more pas-
sive approach, basically allowing the property to revert
to a natural state by ceasing all landscaping activities.
Concerns were raised about Dreyer’s plan, particularly
the potential for erosion of exposed soil and the need
for regulatory permits. Following the hearing, the court
did not adopt either party’s recommendations in their
entirety, but rather, took a hybrid approach that differed
considerably from either party’s plan. As to the
meadow, the court ordered the planting of plugs rather
than the removal of the existing turf, and then requested
that the parties submit specific planting plans. Follow-
ing the submission of those plans, the court ordered
the defendant to comply with the plan submitted by
the plaintiff. That plan did not include any cost estimate.
The court did not alter its earlier award of statutory
damages.
Because a trial court has broad discretion to deter-
mine whether damages are appropriate, we normally
review a damages award only for a clear abuse of discre-
tion. Elm City Cheese Co. v. Federico, 251 Conn. 59, 90,
752 A.2d 1037 (1999). To the extent the interpretation of
a statute is at issue, however, our review is plenary.
Santorso v. Bristol Hospital, supra, 308 Conn. 355.
Section 52-560a (c) authorizes a holder of a conserva-
tion easement, such as the plaintiff, to bring an action
in Superior Court against one who encroaches on that
easement and provides, further, that a party found to
have encroached will be required to restore the property
to its earlier condition. Subsection (d) of § 52-560a
allows for additional damages and provides in relevant
part: ‘‘In addition to any damages and relief ordered
pursuant to subsection (c) of this section, the court
may award damages of up to five times the cost of
restoration or statutory damages of up to five thousand
dollars. . . .’’ In awarding such additional damages, the
court is directed to consider certain factors, including
the wilfulness of the violation and the extent of the
damage done to natural resources. General Statutes
§ 52-560a (d).
We conclude that the trial court’s damages award,
although unconventionally fashioned, was compliant
with § 52-560a (d) at the time it initially was issued. In
short, although the fixed award of $350,000 might have
resulted in a statutory multiple that was imputed, rather
than explicitly chosen, for the sake of flexibility, the
award was anchored in the evidence that restoration
costs would be $100,000 or more and, accordingly, did
not run afoul of the statutory maximum ratio of punitive
damages to actual damages. When the court later
adopted a different restoration plan, however, with no
evidence of its cost, its earlier award lost its mooring
and the ratio of punitive damages to actual damages
became unknown. If the restoration plan ultimately
ordered by the court costs less than $70,000 to imple-
ment, the court’s award of $350,000 would include a
punitive portion that exceeds the fivefold maximum
authorized by § 52-560a (d). Upon remand, the trial
court should take evidence as to the cost of the plan
that it ordered and fashion a new damages award that
is within the statutory parameters.
To summarize, the trial court properly interpreted
the declaration and concluded that the defendant had
violated it in multiple respects. The restoration plan
ordered by the court was authorized by the declaration
as well as by §§ 47-42c and 52-560a, and was predicated
on factual findings having adequate evidentiary support.
The attorney’s fees awarded for the withdrawn declara-
tory judgment portion of this action were proper, but
those awarded in connection with the separate proceed-
ings before the commission, and the plaintiff’s appeal
therefrom, were improper. Finally, the court’s award
of statutory damages was not compliant with § 52-560a
(d) and must be recomputed based on the costs of the
actual restoration plan ordered.
The judgment is reversed as to the award of attorney’s
fees and damages pursuant to § 52-560a (d), and the
case is remanded for a recalculation of attorney’s fees
and damages consistent with this opinion; the judgment
is affirmed in all other respects.
In this opinion the other justices concurred.
1
Also named as defendants in the original complaint were the two owners
of certain property that is also subject to the conservation restriction at
issue. The plaintiff subsequently withdrew the complaint as to those defen-
dants and, for simplicity, we refer to Platner as the defendant.
2
Attorney General George Jepsen was permitted to intervene as an addi-
tional party plaintiff in this action, pursuant to General Statutes § 52-107 and
Practice Book § 9-18, to represent the public’s interest in the conservation
restriction at issue. See General Statutes § 47-42c (authorizing attorney gen-
eral to bring action to enforce public interest in conservation and preserva-
tion restrictions); General Statutes § 52-560a (c) (authorizing attorney
general to bring action for encroachment on conservation easement). For
simplicity, we refer hereinafter to Lyme Land Conservation Trust, Inc., alone
as the plaintiff.
3
General Statutes § 47-42a (a) provides in relevant part: ‘‘ ‘Conservation
restriction’ means a limitation, whether or not stated in the form of a restric-
tion, easement, covenant or condition, in any deed, will or other instrument
executed by or on behalf of the owner of the land described therein . . .
whose purpose is to retain land or water areas predominantly in their
natural, scenic or open condition or in agricultural, farming, forest or open
space use.’’
4
Pursuant to General Statutes § 47-42c, conservation restrictions ‘‘are
interests in land and may be acquired by any governmental body or any
charitable corporation or trust which has the power to acquire interests in
land in the same manner as it may acquire other interests in land. . . .’’
5
Section 3.3 of the declaration provides in relevant part: ‘‘The purpose
of these restrictive covenants is to assure retention of the premises predomi-
nantly in their natural, scenic or open condition and in agricultural, farming,
forest and open space use and to assure competent, conscientious and
effective preservation and management in such condition and use. Said
restrictions are intended as ‘conservation restrictions’ as that term is defined
in [General Statutes §] 47-42a . . . .’’
6
Understory is defined as ‘‘the plants of a forest undergrowth’’ or, broadly,
‘‘an underlying layer of low vegetation.’’ Webster’s Ninth New Collegiate
Dictionary (1983).
7
General Statutes § 52-560a provides in relevant part: ‘‘(b) No person may
encroach . . . on open space land or on any land for which . . . a nonprofit
land conservation organization holds a conservation easement interest, with-
out the permission of the owner of such open space land or holder of such
conservation easement or without other legal authorization. . . .’’ Pursuant
to subsection (a) of § 52-560a, ‘‘ ‘encroach’ means to conduct an activity
that causes damage or alteration to the land or vegetation or other features
thereon, including, but not limited to, erecting buildings or other structures,
constructing roads, driveways or trails, destroying or moving stone walls,
cutting trees or other vegetation, removing boundary markers, installing
lawns or utilities, or using, storing, or depositing vehicles, materials or
debris.’’
8
Specifically, the plaintiff agreed that the driveway could remain in the
protected area, and the defendant agreed that an additional parcel of for-
merly unprotected land would become subject to the conservation restric-
tion. Prior to this agreement, the court had ordered that the encroaching
portion of the driveway be removed and that the area be restored.
9
The defendant appealed from the judgment of the trial court to the
Appellate Court, and this court transferred the appeal to itself pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
10
The restrictions contained in article one of the declaration, in their
entirety, are as follows:
‘‘1.1. No building, sign, outdoor advertising display, mobile home, utility
pole or other temporary or permanent structure will be constructed, placed
or permitted to remain upon the [p]rotected [a]reas.
‘‘1.2. No soil, loam, peat, sand, gravel, rock or other mineral substance,
refuse, trash, vehicle bodies or parts, rubbish, debris, junk, or other waste
material will be placed, stored or permitted to remain thereon.
‘‘1.3. No soil, loam, peat, sand, gravel, rock, mineral substance or other
earth product or material shall be excavated or removed therefrom.
‘‘1.4. No trees, grasses or other vegetation thereon shall be cleared or
otherwise destroyed.
‘‘1.5. No activities or uses shall be conducted thereon which are detrimen-
tal to drainage, flood control, water conservation, erosion control, soil con-
servation, fish and wildlife or habitat preservation.
‘‘1.6. No snowmobiles, dune buggies, motorcycles, all-terrain vehicles or
other vehicles of any kind shall be operated thereon.
‘‘1.7. Except as may otherwise be necessary or appropriate, as determined
by the [g]rantee, to carry out beneficial and selective [noncommercial] for-
estry practices, all woodland thereon shall be kept in a state of natural wil-
derness.
‘‘1.8. No hunting (as distinguished, in the opinion of the [g]rantee, from
ecologically necessary or appropriate practices of animal population con-
trol) shall be carried on thereon.
‘‘1.9. No boat centers, docks or other such landings shall be located or
used thereon.’’
11
The reservations contained in article II of the declaration, in their
entirety, are as follows:
‘‘2.1. To create and maintain views and sight lines from residential property
of the [g]rantor by the selective cutting, pruning or trimming of vegetation,
provided that such action shall not have a significant adverse impact upon
the [p]rotected [a]reas.
‘‘2.2. To conduct and engage in the cultivation and harvesting of crops,
flowers and hay; the planting of trees and shrubs and the mowing of grass;
the grazing of livestock; and the construction and maintenance of fences
necessary in connection therewith.
‘‘2.3. The cultivation and harvesting of forest products in accordance with
sound [noncommercial] forestry practices.
‘‘2.4. To maintain, repair, reconstruct and replace any utility poles and
associated appurtenances thereto located upon the [p]rotected [a]reas at
the effective date hereof.
‘‘2.5. To continue the use of the [p]rotected [a]reas for all purposes not
inconsistent with the restrictions set forth in ARTICLE I above.’’
12
For this reason, we need not consult, as the parties suggest, the restric-
tion’s general purpose for further clarification. Because there is no ambigu-
ity, we also need not reach the question, raised by the parties, of whether
restrictive covenants creating conservation easements ought to be construed
narrowly, in favor of promoting the free use of property, or more broadly,
in favor of promoting public policy and protecting the expectations of the
grantor and grantee.
13
As to this point, the trial court explicitly credited the testimony of the
defendant’s husband, whom the court previously found to be the defendant’s
agent, on his and the defendant’s intentions: ‘‘[W]e began [in 2007] mowing
the fields very, very regularly . . . by the end of two seasons, the field had
turned into what we were looking to get it to turn into, which was primarily
grass. . . . And in 2009, at that point, we began working on the grass field
to move it into more of a lawn like the lawn [in the unprotected area], to
give you a rough description. . . . In 2009, I know we had a big slice seeding
project to, you know, strengthen the turf, and we also expanded the irrigation
into that area to support the seeding that we were doing with the slice
seeding.’’
14
We reject the defendant’s claim that her activities in the woodlands were
limited to the removal of invasive species. There was conflicting evidence in
this regard, and the trial court was free to credit the evidence that refuted
the defendant’s contention.
15
We agree with the defendant that the reservation set forth in § 2.2 of the
declaration expressly permitted the cultivation of flowers and the planting of
shrubs and, therefore, that her activities in this regard were not disallowed
by the declaration. The trial court, however, made no finding to the contrary.
16
‘‘The meaning of a statute shall, in the first instance, be ascertained
from the text of the statute itself and its relationship to other statutes. If,
after examining such text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the statute shall not be
considered.’’ General Statutes § 1-2z.
17
General Statutes § 52-560a (d) provides in relevant part: ‘‘In addition to
any damages and relief ordered pursuant to subsection (c) of this section,
the court may award damages of up to five times the cost of restoration or
statutory damages of up to five thousand dollars. In determining the amount
of the award, the court shall consider the willfulness of the violation, the
extent of damage done to natural resources, if any, the appraised value of
any trees or shrubs cut, damaged, or carried away . . . any economic gain
realized by the violator and any other relevant factors.’’