57 Broad Street Stamford, LLC v. Summer House Owners, LLC ( 2018 )

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57 BROAD STREET STAMFORD, LLC, ET AL. v.
SUMMER HOUSE OWNERS, LLC
(AC 39912)
Lavine, Prescott and Harper, Js.
Syllabus
The plaintiffs sought, inter alia, an injunction restraining the defendant from
interfering with their alleged rights under a certain easement contained
in a declaration establishing an entity described therein as a six unit,
air rights condominium. The plaintiffs purchased and jointly owned unit
1 of the condominium. Unit 2, which was the beneficiary of most of the
air rights, included a 6900 square foot easement area that benefited unit
1. The easement granted to unit 1 the right to pass and repass over the
easement area for purposes of access to the building and improvements
on unit 1, the recycling and refuse area on unit 2 and eighteen parking
spaces in the parking garage. As part of the construction of the condomin-
ium, the defendant built a 1500 square foot service access structure in the
center of the easement area. After the defendant refused the plaintiffs’
demand that it cease and desist from building further structures in the
easement area and that it demolish the service access structure, the
plaintiffs commenced the present action claiming that their easement
rights encompassed the entirety of the easement area and that the
construction of the service access structure interfered with those rights.
Following a trial to the court, the court rendered judgment in favor of the
defendant, concluding that the defendant’s construction of the service
access structure did not materially interfere with the plaintiffs’ reason-
able use and enjoyment of the easement. On the plaintiffs’ appeal to
this court, held:
1. The trial court properly concluded that the defendant’s construction of the
service access structure did not materially interfere with the plaintiffs’
reasonable use and enjoyment of the easement: although the plaintiffs
claimed that construction of the service access structure interfered with
their rights under the easement to access the building and improvements
on unit 1 and the recycling and refuse area on unit 2 because large
vehicles are prevented from entering the area fully, there may be traffic
congestion if tenants are moving into the apartments in unit 2 at the
same time deliveries are being made to the other units, and hand trucks
must be used to remove refuse from the area, the claim that there may
be congestion if a certain number of vehicles are present in the area at
once was mere conjecture, especially given that the plaintiffs had yet
to occupy unit 1, the evidence admitted at trial established that the
plaintiffs would be able to access the recycling and refuse area, as the
occupants of other units currently do without issue, and nothing in the
language of the easement provided for full and unlimited access by large
vehicles or prohibited the construction of permanent structures within
the easement area; moreover, the record supported the court’s conclu-
sion that, despite the existence of the service access structure, the
plaintiffs are able to access their unit and to make improvements, as
they are entitled to do under the easement, by way of a ten foot wide
passage, a seven foot wide sidewalk and a certain loading area, and,
therefore, the plaintiffs did not demonstrate that, in order to make
reasonable use and enjoyment of their easement rights, large vehicles
must be able to get directly to the rear door of their unit.
2. The plaintiffs could not prevail on their claim that the trial court modified
their easement rights in concluding that the defendant had the unilateral
right to determine the method, timing and location by which the plaintiffs
might use the easement area, that court having properly construed the
relevant language of the easement; in interpreting the language of the
easement, the court rejected the plaintiffs’ assertion that the entirety
of the easement area must be available to them because their position
did not comport with the stricture of Stefanoni v. Duncan (282 Conn.
686), that the use of an easement be reasonable and as little burdensome
to the servient estate as possible, and, therefore, the court correctly
concluded that the plaintiffs’ interpretation of their rights under the
easement did not comport with the language of the easement, which
provided the plaintiffs with the right to pass and repass for the purposes
of accessing their unit and the improvements thereon, the recycling and
refuse area and parking in the parking garage, and that the plaintiffs’
interpretation that the easement provided them with unlimited access
was unreasonable under the clear language of the easement.
Argued February 5—officially released September 18, 2018
Procedural History
Action for an injunction restraining the defendant
from interfering with the plaintiffs’ alleged rights under
certain easements, and for other relief, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk and tried to the court, Hon. Taggart D. Adams,
judge trial referee; judgment for the defendant, from
which the plaintiffs appealed to this court. Affirmed.
Matthew B. Woods, for the appellants (plaintiffs).
James R. Fogarty, for the appellee (defendant).
Opinion
HARPER, J. In this easement dispute, the plaintiffs,
57 Broad Street Stamford, LLC, and 59 Broad Street
Stamford, LLC, appeal from the judgment rendered by
the trial court, following a trial to the court, in favor
of the defendant, Summer House Owners, LLC. On
appeal, the plaintiffs claim that the court erred in con-
cluding that (1) the defendant’s construction of a 1500
square foot service access structure within a 6900
square foot easement area did not materially interfere
with the plaintiffs’ reasonable use and enjoyment of the
easement area, and (2) the defendant had the unilateral
right to determine the method, timing, and location by
which the plaintiffs might use the easement area. We
affirm the judgment of the trial court.
The following facts, as set forth in the court’s memo-
randum of decision or otherwise in the record and
undisputed, and procedural history are relevant to our
resolution of this appeal. In a complaint dated January
11, 2016, the plaintiffs claimed that the defendant mate-
rially and substantially had interfered with their use
and enjoyment of an easement, titled ‘‘Easement A’’
(easement).1 The plaintiffs sought both compensatory
damages and injunctive relief. The easement is ‘‘con-
tained in the recorded documents [declaration] estab-
lishing the entity known as the Broad Summer
Condominium [condominium] located in downtown
Stamford . . . . The [c]ondominium is described as an
‘air rights condominium,’ and consists of six units. Unit
1 contains what is described as an almost forty year
old, 30,000 square foot three story building with full
basement fronting on Broad Street . . . . The building
has been vacant for several years. Unit 1 is jointly owned
by the plaintiffs . . . . Unit 2 . . . is the beneficiary
of most of the air rights and the present site of a recently
constructed [twenty-one] story residential apartment
building that includes four parking levels, owned by
the defendant and known as Summer House. . . .2
‘‘The area of [u]nit 2, which has an undivided interest
in the [c]ondominium of 25.97 percent, includes an ease-
ment area . . . for the benefit of [u]nits 1, 3 and 4.
. . . The [easement] area consists of a little less than
6900 square feet. . . .
‘‘The [d]eclarant of the [c]ondominium is Tolari, LLC
[Tolari]. Thomas Rich, the chief executive officer of
F. D. Rich Co[mpany], a long time real estate developer
in Stamford, is Tolari’s managing member, and also an
owner of Summer House [condominium]. F. D. Rich
Co[mpany] is described as the primary developer of
Summer House. . . . Tolari and the principals of the
plaintiffs, Kostas Alafoyiannis (principal of 57 Broad
[Street Stamford, LLC]) and Alexander Todorovic (prin-
cipal of 59 Broad [Street Stamford, LLC]) signed a con-
tract, dated June 19, 2012, for [the plaintiffs’] purchase
of [u]nit 1. . . . Because the [c]ondominium [d]eclara-
tion and the plans for the apartment building were not
complete at that time, the contract contained an ‘out’
clause allowing the [u]nit 1 purchasers a period of time
to rescind the purchase for ‘any reason or no reason.’
There followed negotiations between attorneys for the
[u]nit 1 purchasers . . . and the attorney for the seller-
declarant . . . .’’3 (Footnote added.) These negotia-
tions concerned the easement language that is at issue
in the present case. The language as negotiated is con-
tained in [§] 12.2 of the declaration, which is dated
October 24, 2012.4
Approximately one year later, the construction plans
were finalized. ‘‘The construction contract for Summer
House was dated August 28, 2013. . . . The plaintiffs
were notified that construction would commence by
letter dated January 7, 2014. . . . The progress of con-
struction is shown by dated photographs . . . taken
between February, 2014 [and] October, 2015. The . . .
plaintiffs occasionally visited their building during the
construction period.’’ (Citations omitted; footnote omit-
ted.) During this time, construction began on the service
access structure at issue in this appeal. ‘‘[T]he service
access structure is approximately [seventy-five] feet
long running east to west and [twenty] feet wide. The
structure effectively leaves three means of access to
the south side of the plaintiffs’ building on [u]nit 1.
These means of access . . . are: (1) a [ten] foot wide
passage way between the Target Store and [u]nit 1
extending south from Broad Street to the light and air
easement area south of [u]nit 1; (2) a seven foot wide
sidewalk running east-west between the ‘service access
structure’ and the Target Store garage; and (3) an
entryway under the Summer House varying in width
from [twenty to twenty-six] feet beginning at what is
labeled ‘Loading Area’ . . . and running east from the
Target access way and turning north toward the back,
or south side, of the plaintiffs’ building on [u]nit 1.’’
Thereafter, ‘‘[i]n December, 2015, . . . [the plain-
tiffs’ attorney], on behalf of the plaintiffs in a letter to
. . . [the defendant’s attorney], demanded the defen-
dant cease and desist from building further structures
located on [the easement] and demolish what had been
built there. . . . [The defendant’s attorney] responded
a little over a week later, noting that the plaintiffs had
information for over two years of the planned construc-
tion on [the easement] and in any event, the plaintiffs
would have the access and parking called for in [§] 12.2
of the [d]eclaration.’’
The plaintiffs commenced the underlying action the
following month, claiming that their easement rights
encompassed the entirety of the easement area and that
the construction of a service access structure in the
center of the easement interfered with those rights. A
five day trial to the court took place between June 15
and July 21, 2016.5 On November 30, 2016, the court
issued its memorandum of decision. It concluded that
the defendant had not interfered with the plaintiffs’ use
and enjoyment of the easement and rendered judgment
in favor of the defendant.6 This appeal followed.
I
The plaintiffs first claim that the court improperly
concluded that the defendant did not interfere with
their reasonable use and enjoyment of the easement.
Specifically, the plaintiffs argue that the court erred in
concluding that the defendant’s construction of the 1500
square foot service access structure within the 6900
square foot easement area did not violate their ease-
ment rights. We disagree.
We first set forth our standard of review.7 ‘‘[T]he
determination of the intent behind language in a deed,
considered in the light of all the surrounding circum-
stances, presents a question of law on which our scope
of review is . . . plenary. . . . Thus, when faced with
a question regarding the construction of language in
deeds, the reviewing court does not give the customary
deference to the trial court’s factual inferences.’’ (Inter-
nal quotation marks omitted.) Avery v. Medina, 151
Conn. App. 433, 440–41, 94 A.3d 1241 (2014). In contrast,
‘‘[t]he determination of [the] reasonableness [of the use
of an easement] is for the trier of fact.’’ (Citations omit-
ted; internal quotation marks omitted.) Stefanoni v.
Duncan, 282 Conn. 686, 701, 923 A.2d 737 (2007). ‘‘This
court [has] observed that review of the court’s conclu-
sion that [certain] plantings violated . . . easement
rights involves a mixed question of fact and law. [S]o-
called mixed questions of fact and law, which require
the application of a legal standard to the historical-fact
determinations, are not facts in this sense. . . . [Such
questions require] plenary review by this court unfet-
tered by the clearly erroneous standard.’’ (Internal quo-
tation marks omitted.) Zirinsky v. Carnegie Hill
Capital Asset Management, LLC, 139 Conn. App. 706,
714–15, 58 A.3d 284 (2012); see also D’Appollonio v.
Griffo-Brandao, 138 Conn. App. 304, 323, 53 A.3d 1013
(2012). ‘‘When legal conclusions of the trial court are
challenged on appeal, we must decide whether [those]
. . . conclusions are legally and logically correct and
find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Zirinsky v. Carne-
gie Hill Capital Asset Management, LLC, supra, 715.
‘‘It is well settled that [a]n easement creates a nonpos-
sessory right to enter and use land in the possession
of another and obligates the possessor not to interfere
with the rules authorized by the easement. . . . [T]he
benefit of an easement . . . is considered a nonpos-
sessory interest in land because it generally authorizes
limited uses of the burdened property for a particular
purpose. . . . [E]asements are not ownership interests
but rather privileges to use [the] land of another in [a]
certain manner for [a] certain purpose . . . .’’ (Internal
quotation marks omitted.) Cheshire Land Trust, LLC
v. Casey, 156 Conn. App. 833, 844, 115 A.3d 497 (2015).
‘‘In determining the character and extent of an easement
created by deed, the ordinary import of the language
will be accepted as indicative of the intention of the
parties, unless there is something in the situation of the
property or the surrounding circumstances that calls for
a different interpretation.’’ (Internal quotation marks
omitted.) Stefanoni v. Duncan, supra, 282 Conn. 700.
‘‘Except as limited by the terms of the servitude . . .
the holder of an easement . . . is entitled to use the
servient estate in a manner that is reasonably necessary
for the convenient enjoyment of the servitude. . . .
Likewise, [e]xcept as limited by the terms of the servi-
tude . . . the holder of the servient estate is entitled
to make any use of the servient estate that does not
unreasonably interfere with enjoyment of the servi-
tude.’’ (Citations omitted; internal quotation marks
omitted.) Zirinsky v. Carnegie Hill Capital Asset Man-
agement, LLC, supra, 139 Conn. App. 713.
We begin our analysis by identifying the plaintiffs’
rights under the easement. Section 12.2 of the declara-
tion provides in relevant part: ‘‘(i) A perpetual right and
easement is granted to Unit No. 1 and to the Association
to pass and repass over those portions of Unit No.
2 shown as ‘Easement A’ on the Survey including all
walkways, drives, roads and parking areas shown on
the Survey, for the purposes of: (a) accessing the build-
ing and Improvements now or hereafter located upon
Unit No. 1; (b) accessing the recycling and refuse area
located on Unit No. 2; and (c) accessing eighteen (18)
parking spaces located within Unit No. 2 in the area
shown on the Survey, and parking vehicles within said
parking spaces (‘Parking Area’). The easement granted
herein for the benefit of Unit No. 1 shall be shared with
others to whom the Owner of Unit No. 2 has granted,
or shall hereafter grant, rights to enter and pass over
and upon Unit No. 2 . . . .’’8 The easement thus sets
forth the right to pass and repass over the easement
for three particular purposes. See Zirinsky v. Carnegie
Hill Capital Asset Management, LLC, supra, 139 Conn.
App. 716–17 (‘‘an easement generally authorizes limited
uses of the burdened property for a particular purpose’’
[emphasis omitted; internal quotation marks omitted]).
Those purposes include access to (1) the building and
improvements on unit 1, (2) the recycling and refuse
area on unit 2, and (3) eighteen parking spaces in the
parking garage.
On appeal, the plaintiffs claim that the construction
of the service access structure interferes with the first
two rights set forth in the easement—accessing the
building and improvements on unit 1 and accessing the
recycling and refuse area on unit 2. Specifically, the
plaintiffs claim that, as a result of the service access
structure, large trucks are prevented from entering the
area fully, there may be traffic congestion if tenants
are moving into the apartments in unit 2 at the same
time deliveries are being made to the other units, and
hand trucks must be used to remove refuse from the
area.
Despite the plaintiffs’ contention to the contrary, the
trial court concluded that the construction of the ser-
vice access structure does not interfere with or impair
their rights under the easement. The claim that there
may be congestion if a certain number of vehicles are
present in the area at once is mere conjecture, espe-
cially given that the plaintiffs have yet to occupy unit 1.
Additionally, the evidence admitted at trial established
that the plaintiffs still will be able to access the recycling
and refuse area, as the other units currently do without
issue. Thus, the only remaining argument is that the
service access structure unreasonably interferes with
the plaintiffs’ use and enjoyment of the easement
because large vehicles, such as box trucks and tractor
trailer trucks, can make it no closer than approximately
100 feet of unit 1.9
As an initial matter, we note that nothing in the lan-
guage of the declaration provides for full and unlimited
access by large vehicles. The plaintiffs’ attorney con-
ceded at oral argument before this court that the plain-
tiffs intended for the easement to permit access for
large vehicles but that it was never discussed with the
defendant.10 Additionally, nothing in the language of
the declaration prohibits the construction of permanent
structures within the easement area.11 Cf. Avery v.
Medina, supra, 151 Conn. App. 442 (easement language
placed restriction on permanent structures); Zirinsky
v. Carnegie Hill Capital Asset Management, LLC,
supra, 139 Conn. App. 716 (easement language explicitly
stated that ‘‘no construction of any permanent structure
may be erected on the [e]asement [p]roperty’’ [internal
quotation marks omitted]).
More importantly, as the court concluded and the
record supports, the plaintiffs still are able to access
their unit and make improvements, as they are entitled
to do under the easement. The court noted in its memo-
randum of decision that, even with the structure, three
means of access to the rear of the plaintiffs’ unit
remain—a ten foot wide passage, a seven foot wide
sidewalk, and a loading area under the Summer House.
Evidence presented at trial established that large trucks
make deliveries to the other units with which the plain-
tiffs share the easement rights without issue. These
trucks can get as close as 100 feet to the building, and
then deliveries are made via hand trucks. The court
also noted that ‘‘vehicles sufficient to allow service of
the HVAC equipment on the roof of the [u]nit 1 building
and to access other exterior building repairs could
[occur]’’ even with the existence of the structure.
The plaintiffs have not demonstrated that, in order to
make reasonable use and enjoyment of their easement
rights, large trucks must be able to get directly to the
rear door of their unit. See Zhang v. Omnipoint Com-
munications Enterprises, Inc., 272 Conn. 627, 637, 866
A.2d 588 (2005) (‘‘the beneficiary of an easement [may]
make any use of the servient estate that is reasonably
necessary for the convenient enjoyment of the servitude
for its intended purpose’’ [emphasis added]). The plain-
tiffs are not prevented from accessing their unit and
making improvements to it, or accessing the recycling
and refuse area. The plaintiffs have failed to establish
that the defendant’s construction of the service access
structure impairs their reasonable use of the easement,
or that it otherwise interferes with their easement
rights. See Kelly v. Ivler, 187 Conn. 31, 48–49, 450 A.2d
817 (1982) (‘‘[T]he sole purpose of [the] easement was
to provide the owners of Lots 1 and 2 with a means by
which they could walk to the beach. We cannot say,
after viewing the photographs included as exhibits and
in light of the use of the easement, that the fence materi-
ally or substantially interferes with pedestrian passage
over the easement.’’).12 We are guided further by the
principle that ‘‘[t]he use of an easement must be reason-
able and as little burdensome to the servient estate as
the nature of the easement and the purpose will permit.’’
(Internal quotation marks omitted.) Stefanoni v. Dun-
can, supra, 282 Conn. 701. On the basis of the foregoing,
we cannot conclude that the court erred in concluding
that the structure did not materially and substantially
interfere with the plaintiffs’ use and enjoyment of the
easement.
II
The plaintiffs next claim that the court’s decision has
given the defendant the ‘‘unilateral right to determine
the method, timing, and location by which the plaintiffs
. . . might use the easement area.’’ In support of their
claim, the plaintiffs cite to the following language from
the court’s memorandum of decision: ‘‘The court does
not agree with the plaintiffs’ contention that the whole
of the [easement] area must be available to allow access
to [u]nit 1. This position does not comport with the
stricture of Stefanoni v. Duncan, [supra, 282 Conn.
699], that the use of an easement [by the dominant
estate] be reasonable and as little burdensome [to the
servient estate] as possible.’’ The plaintiffs argue that
the court ‘‘adopted the defendant’s unilateral determi-
nation of what was reasonable vehicular access to unit
1’’ and, as a result, ‘‘modified the plaintiffs’ right and
easement as to its spatial parameters . . . .’’13 We
disagree.
‘‘The owner of land over which an easement has
been granted has, by law, all the rights and benefits of
ownership consistent with the existence of the ease-
ment. . . . Of necessity, the interests of the owner of
the easement often conflict with the interests of the
owner of the burdened estate. By law, however, each of
the parties owes certain duties to the other.’’ (Citations
omitted; internal quotation marks omitted.) Kelly v.
Ivler, supra, 187 Conn. 48. ‘‘The use of an easement
must be reasonable and as little burdensome to the
servient estate as the nature of the easement and the
purpose will permit. . . . The determination of [the]
reasonableness [of the use of an easement] is for the
trier of fact . . . .’’ (Citation omitted; internal quotation
marks omitted.) Stefanoni v. Duncan, supra, 282 Conn.
701. ‘‘The principles guiding our construction of land
conveyance instruments, [however] are well estab-
lished. The construction of a deed . . . presents a ques-
tion of law which we have plenary power to resolve.’’
(Internal quotation marks omitted.) Id., 704.
Contrary to the plaintiffs’ contention on appeal, the
court did not hold that the ‘‘defendant . . . had the
unilateral right to determine the method, timing and
location by which the plaintiffs might use the easement
area.’’ Instead, the court merely rejected the plaintiffs’
claim that the entirety of the easement area must be
available to them because their ‘‘position does not com-
port with the stricture of Stefanoni v. Duncan, [supra,
282 Conn. 699], that the use of an easement be reason-
able and as little burdensome as possible.’’ Further-
more, the plaintiffs’ position ignores the fact that the
easement rights must be shared with several other
units—thereby negating the argument they made to the
court that ‘‘the whole of the [easement] area must be
available to allow access to [u]nit 1.’’ Thus, the court
correctly concluded that the plaintiffs’ interpretation
of their rights under the easement did not comport
with the language of the easement, which provides the
plaintiffs with the right to pass and repass for the pur-
poses of accessing their unit and the improvements
thereon, the recycling and refuse area, and parking in
the parking garage. We agree with the court that the
plaintiffs’ interpretation that the easement provides
them with unlimited access is unreasonable under the
clear language of the easement.
Additionally, as we conclude in part I of this opinion,
the defendant did not unreasonably interfere with or
impair the plaintiffs’ easement rights by constructing
the service access structure. See Schwartz v. Murphy,
74 Conn. App. 286, 297 n.7, 812 A.2d 87 (2002) (‘‘[e]xcept
as limited by the terms of the servitude . . . the holder
of the servient estate is entitled to make any use of the
servient estate that does not unreasonably interfere
with enjoyment of the servitude’’ [internal quotation
marks omitted]), cert. denied, 263 Conn. App. 908, 819
A.2d 841 (2003), cert. denied, 546 U.S. 820, 126 S. Ct.
352, 163 L. Ed. 2d 61 (2005). Therefore, it necessarily
follows that the court did not modify the plaintiffs’
easement rights. Accordingly, we conclude that the
court properly construed the language of the easement.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiffs also alleged in their complaint that the defendant violated
a light and air easement. On appeal, the plaintiffs do not challenge the
court’s conclusion as to the light and air easement.
2
‘‘Units 3 and 4 are older buildings fronting the west side of lower Summer
Street . . . . Unit 5 is the location of the Majestic Theater at 118 Summer
Street. Unit 6 is a roadway. The locations of the [c]ondominium units are
depicted on a property survey . . . .’’
3
Initially, the plaintiffs were granted eighteen parking spaces within the
easement area. Following negotiations in and around August, 2012, the
eighteen parking spaces were moved from the easement area to a new
parking garage—Summer House garage. It is undisputed that the plaintiffs
do not have the right to eighteen parking spaces within a portion of the
6900 square foot easement area at issue in this appeal.
4
The limited warranty deed for unit 1, dated October 26, 2012, was
recorded in the Stamford land records on October 31, 2012. The plaintiffs’
deed references ‘‘the terms, conditions, restrictions and provisions of . . .
[the] Declaration of Broad Summer Condominium recorded October 24,
2012, in . . . the Stamford Land Records.’’
5
The court bifurcated the proceedings. The court first addressed the
threshold issue of whether the defendant had violated the easement. Only
if the court had found that the defendant had violated the easement would
it hold further proceedings to determine the appropriate legal and equitable
relief. Because the court found that the defendant did not violate the ease-
ment, it rendered judgment in favor of the defendant.
6
The court further stated in its memorandum of decision that, ‘‘[h]aving
found that the defendant has not violated the plaintiffs’ easement rights,
[the] court is not required to decide the merits of the defendant’s special
defense that the institution of this case in January, 2016, constituted an
unreasonable and inexcusable delay that was prejudicial to the defendant.
Nevertheless, the court observes the defense has merit. . . . At the very
least, the plaintiffs’ delay would preclude any equitable relief.’’
7
The plaintiffs challenge on appeal the court’s determination that the
defendant did not interfere with their easement rights. The plaintiffs’ attorney
conceded at oral argument before this court that the plaintiffs’ claim does
not challenge the scope of the easement, which is a finding of fact. See
Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d 737 (2007) (‘‘[t]he determi-
nation of the scope of an easement is a question of fact’’ [internal quotation
marks omitted]).
8
Section 12.2 of the declaration further provides: ‘‘[T]he Owner of Unit
No. 1 shall have the right (‘Parking Easement’) to access and park vehicles
within the eighteen (18) parking spaces on an exclusive basis located within
the area on Unit No. 2 shown as ‘Easement A’ on the Survey and numbered
as parking spaces one (1) to eighteen (18). Subject to the provisions of sub-
paragraph (ii) of this Section 12.2, the Owner of Unit No. 2, in order to
commence construction activities on Unit No. 2, shall have the right, from
time to time, to relocate the eighteen (18) parking spaces within the Perime-
ter Boundaries of Unit No. 2, provided further that, simultaneously upon
any such relocation, the Owner of Unit No. 2 shall provide the Owner of
Unit No. 1 with any additional access rights over and upon Unit No. 2 as
shall be reasonably necessary to access such relocated parking spaces. All
costs and expenses incurred by the Owner of Unit No. 2 in operating,
maintaining, repairing, and replacing (i) the Improvements on Unit No. 2
used to operate as a common parking area; and (ii) the recycling and refuse
area located upon Unit No. 2 or upon any property adjacent to Unit No. 2
(whether owned by Declarant or an affiliate of Declarant) shall be the sole
obligation of Unit No. 2.’’
9
As the court noted in its memorandum of decision: ‘‘There is no question
that the service access building on the [easement] area restricts the plaintiffs’
use of that area to an extent, but the plaintiffs must show by a preponderance
of the evidence, that their claim to use of the ‘entirety’ of the [easement]
area for all types of vehicles is a reasonable use of their easement rights
and as ‘little burdensome’ to the defendant ‘as the nature of the easement
and [its] purpose will permit.’ Stefanoni v. Duncan, supra, 282 Conn. 701.
They must also prove by that standard that they are not receiving the benefits
assured by [§] 12.2 of the [d]eclaration.’’
10
The plaintiffs argue that the language ‘‘pass and repass’’ in the easement
requires pass and repass of vehicles of all sizes. At oral argument before
this court, the plaintiffs conceded that there was no discussion between
the parties regarding vehicular access to the easement area and clarified
that it was the plaintiffs who intended that the area include vehicular access.
11
We note that the easement was drafted jointly by the parties’ attorneys.
If the plaintiffs wanted to include language that permitted access by vehicles
of all sizes, or that prohibited the construction of any permanent structures,
they could have proposed that such language be included. They did not.
12
We note that the plaintiffs were aware of the construction of the struc-
ture well before they complained of it to the defendant. In March, 2013, the
plaintiffs and their counsel received information of the planned location for
the service access structure. In September, 2013, the plaintiffs suggested
an alternative plan, which the defendant rejected. The plaintiffs did not
object further during the two year period before the construction of the
structure commenced. In December, 2015, after construction had com-
menced, the plaintiffs contacted the defendant and demanded that it
cease construction.
13
The plaintiffs also argue that the defendant should have consulted with
them prior to construction because it did not have the unilateral right to
determine the scope of the easement. We note, however, that the defendant
did inform the plaintiffs of the construction plans in 2013—two years prior
to construction commencing. See footnote 12 of this opinion. Although the
plaintiffs proposed an alternative plan at that time, which the defendant
rejected, the plaintiff failed to take further action to contest the construction
or to involve themselves in the planning, until construction commenced in
2015. See id. Thus, to the extent that the plaintiffs suggest that the defendant
acted unilaterally without their knowledge or consent, we reject that
argument.