Abel v. Johnson ( 2019 )

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MICHAEL ABEL ET AL. v. CELESTE M. JOHNSON
(AC 41058)
Keller, Moll and Beach, Js.
Syllabus
The plaintiffs, owners of property in a subdivision, sought to enjoin the
defendant abutting property owner from violating certain restrictive
covenants in connection with deeds to the parties’ properties. The first
deed restriction, which limited the land to residential use only, was
contained in a 1956 deed, whereby the original grantors conveyed the
land to a housing developer, E Co. In a 1961 declaration executed by
E Co., restrictions regarding the keeping of chickens and the parking
of commercial vehicles were added. At trial, the defendant admitted to
operating a landscaping company from her property and keeping chick-
ens on her property, and that several vehicles on her property were
used in conjunction with her landscaping business. The trial court found
that the plaintiffs had standing to enforce the restrictive covenants
contained in the 1956 deed and the 1961 declaration on the grounds
that the parties’ properties were part of a common scheme of develop-
ment and both parties’ deeds contained the restrictive covenants at
issue. The trial court rendered judgment in favor of the plaintiffs and
awarded the plaintiffs injunctive relief. On the defendant’s appeal to
this court, held:
1. The trial court improperly determined that the plaintiffs had standing to
enforce the restrictive covenant in the 1956 deed that limited the use
of the defendants’ property for residential purposes, as there was no
allegation or evidence that the plaintiffs were the original grantors of
the 1956 deed or their successors in interest; the restrictive covenants
set forth in the 1956 deed were expressly intended to inure to the benefit
of the remaining land of the original grantors of the premises conveyed
in the 1956 deed, which were subsequently conveyed to the parties, the
plaintiffs had neither alleged nor proven that they were entitled to
enforce the restrictive covenants at issue under a theory of mutuality
of covenant and consideration, the original grantors, for their benefit,
extracted covenants from the grantees of the 1956 deed, and there was
no language in the deed that suggested that the restrictive covenants
were intended to benefit the original or subsequent grantees of the 1956
deed, or that the original grantors were dividing their property into
building lots, thereby imposing the restrictive covenants upon grantees
as part of a general developments scheme, as the restrictive covenants
at issue fell within the class of covenants exacted by a grantor from his
grantee presumptively or actually for the benefit and protection of the
adjoining land that he retained.
(One judge dissenting)
2. The trial court erred in awarding injunctive relief regarding the storage
of the defendant’s pickup truck as a commercial vehicle pursuant to a
restrictive covenant contained in the 1961 declaration concerning the
storage of commercial vehicles, as such relief was beyond the scope of
the plaintiffs’ operative complaint; although that court had denied the
plaintiffs’ request to amend the complaint to include a claim for relief
pursuant to the restrictive covenant in the 1961 declaration concerning
the storage of commercial vehicles, it expressly referred to that restric-
tive covenant in awarding injunctive relief, and the plaintiffs could not
prevail on their claim that the relief awarded was proper because their
complaint sought broad relief with respect to any type of commercial
activity pursuant to the 1956 restrictive covenant limiting the use of the
property for residential purposes only, this court having determined
that the plaintiffs lacked standing to enforce that restriction in the
1956 deed.
3. The defendant could not prevail on her claim that the plaintiffs’ action
seeking injunctive relief concerning the keeping of chickens on the
defendant’s property was moot in light of the fact that she had removed
the chickens from her property prior to the commencement of the action:
although there was undisputed evidence that the chickens were no
longer present on the defendant’s property, the trial court had jurisdic-
tion to consider the claim and to afford the plaintiffs practical relief,
as the defendant still owned the chickens, the coops remained on her
property, the defendant previously attempted to get permission from
her neighbors, as required by the restrictive covenant, to keep continue
keeping the chickens on her property, and no evidence was presented
to establish that she did not intend to resume the prohibited conduct
in the future; moreover, the trial court erred in awarding injunctive
relief that indefinitely prohibited chickens on the defendant’s property,
as the court’s order constituted a blanket prohibition against the defen-
dant and precluded her from availing herself of any permissible excep-
tions in the future, including the right, under the 1961 restrictive cove-
nant, to periodically seek permission from her neighbors to keep
chickens on her property, and, therefore, the court exceeded the scope
of the restrictive covenant it purported to enforce.
Argued March 7—officially released November 5, 2019
Procedural History
Action for, inter alia, injunctive relief barring the
defendant from violating restrictive covenants on cer-
tain of the defendant’s real property, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk and tried to the court, Hon. Edward R. Karazin,
Jr., judge trial referee; judgment for the plaintiffs, from
which the defendant appealed to this court. Reversed
in part; vacated in part; judgment directed.
Heather M. Brown-Olsen, for the appellant
(defendant).
John R. Harness, for the appellees (plaintiffs).
Opinion
KELLER, J. In this action to enforce restrictive cove-
nants, 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
in a deed that was executed by the original grantors of
the parties’ real properties1 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 plain-
tiffs alleged that their property abutted that of the defen-
dant, and that both properties are located in a subdivi-
sion named the Saw Mill Association.
The plaintiffs alleged: ‘‘The plaintiffs’ property and
the defendant’s property are subject to certain restric-
tive 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 defendant’s 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 restric-
tive covenants ‘‘are common to all tracts or parcels of
land located within the area or subdivision known as
the Saw Mill Association.’’
The plaintiffs further alleged: ‘‘The defendant is vio-
lating the restrictive covenants by maintaining chickens
and chicken coops upon the defendant’s property and
by conducting a landscaping business from the defen-
dant’s property.’’ Also, the plaintiffs alleged: ‘‘The defen-
dant has not obtained consent from the Saw Mill Associ-
ation . . . the plaintiffs or any neighboring property
owner to maintain chickens upon the defendant’s prop-
erty or to conduct a landscaping business from the
defendant’s property.’’ The plaintiffs alleged that they
had demanded that the defendant cease and desist the
activities at issue, but the defendant had failed to com-
ply 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 cove-
nant 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. Other-
wise, the defendant left the plaintiffs to their proof. 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 within
three years from the time that they had actual or con-
structive 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 defendant’s 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 restric-
tions. The first restriction, [as modified by an agree-
ment] 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 permit-
ted from time to time by the applicable zoning regula-
tions 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 load-
ing or unloading.’
‘‘At trial, the defendant testified that she operates a
landscaping business from her property, that chickens
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 restric-
tions 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 adjoin-
ing land which he retains and, as a result, the [plaintiffs]
cannot enforce the deed restrictions. In addition, the
defendant asserts four special defenses . . . .’’ (Foot-
notes omitted.)
After setting forth relevant legal principles, the court
stated: ‘‘The plaintiffs submitted multiple deeds from
various properties of the Saw Mill Association that con-
tained 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 defendant’s
properties are part of a common scheme of develop-
ment. Therefore, the plaintiffs may enforce the deed
restrictions against the defendant. Without a showing
by the defendant that the enforcement of 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 opera-
tion of a home business because they previously utilized
services from the landscaping business. . . .
‘‘Even if the plaintiffs hired the defendant’s company
in its capacity as a landscaping company, no evidence
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 prop-
erty have been removed prior to the start of trial. . . .
‘‘Both parties agree that the chickens have been
removed from the defendant’s property. In addition,
both parties agree that the chicken coops are still on
the defendant’s 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 [plain-
tiffs] 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 defendant’s 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 munici-
pality [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
knowledge of such violation.’ ‘Section 52-575a requires
that a violation occur before the statute begins to
run’. . . .
‘‘The defendant submitted evidence and elicited testi-
mony from [the] plaintiff Michael Abel at trial which
indicated that the plaintiffs had actual knowledge of
the defendant’s 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 defendant’s breach of the restrictive covenant
involving the operation of a home business, then per-
haps 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 prop-
erty or in front of her home. The defendant put forth
arguments and testimony that some of these activities
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.’’
After the court referred to some of the photographic
evidence submitted by the plaintiffs concerning the
activities that took place and equipment that was pres-
ent on the defendant’s property, the court stated: ‘‘The
exhibits and photographs clearly show that the prem-
ises 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 defendant’s new and
expanding uses of her property in relation to her home
business continue to increase beyond the simple found-
ing 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 busi-
ness, 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 vio-
lating 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 limita-
tions special defense has not been proven.
‘‘The plaintiff[s] [argue] that the defendant’s vehicles
used in connection with the landscaping business are
commercial vehicles and subject to the restrictive cove-
nant prohibiting commercial [vehicles] from being
parked outside of a closed garage. The defendant argues
that the vehicles are her and her husband’s private
vehicles that are sometimes used in connection with
the business and not a commercial vehicle for the pur-
poses of any restrictive covenant or rules of the Saw
Mill Association.’’
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 pur-
poses 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 immedi-
ately cease and desist from violating the restrictive cov-
enants;
‘‘(2) An injunction ordering the defendant from keep-
ing any chickens or roosters upon the defendant’s prop-
erty; (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 such as mulch and sod at
the defendant’s property for resale to customers of the
landscaping business;
‘‘(5) An injunction ordering the defendant not to allow
parking of employees or independent contractor vehi-
cles upon the defendant’s property while the employee
or independent contractor is working for the landscap-
ing business;
‘‘(6) An injunction ordering the defendant to stop
performing chipping of tree branches from the land-
scaping business upon the defendant’s property;
‘‘(7) An injunction ordering the defendant to stop
performing repairs of equipment used in connection
with the landscaping business upon the defendant’s
property.’’3 This appeal followed.
I
First, we address the defendant’s claim that the court
erred in its determination that the plaintiffs had stand-
ing to enforce a restrictive covenant that appears in the
1956 deed that was executed by the original grantors
of the parties’ real properties. We agree with the
defendant.
With respect to the restrictive covenants at issue in
this appeal, the following relevant facts are not in dis-
pute. In 1956, Horace Havemeyer and Harry Waldron
Havemeyer (original grantors) conveyed to a housing
developer, Empire Estates, Inc. (Empire Estates),
166.1229 acres of real property in Stamford. The deed
related to this conveyance is recorded in volume 792,
page 118, of the Stamford land records. In relevant part,
the deed provides: ‘‘This deed is given and accepted
upon the following express covenants and agreements
which shall run with the land herein conveyed and shall
be binding upon the grantee, its successors and assigns,
and shall enure to the benefit of the remaining land of
the grantors lying westerly of the premises herein
conveyed:
‘‘(1). Said premises shall be used for private residen-
tial purposes only (except that a doctor or dentist hav-
ing a home on said premises may locate his office herein
if such use is permitted by the applicable zoning regula-
tions), and no buildings shall be erected or maintained
upon said premises except single-family dwelling
houses and appropriate outbuildings.
‘‘(2). Said tract shall not be subdivided for building
purposes into plots containing less than one (1) acre
in area, and not more than one (1) such dwelling house
shall be erected or maintained on any such plot.’’4
In 1961, Empire Estates, through its trustees, Harry
E. Terhune and Gordon R. Patterson, executed a decla-
ration of restrictions (declaration) that was recorded
in volume 917, page 114, of the Stamford land records.
The declaration, which included thirty-five articles and
set forth a wide variety of restrictions, did not contain
a provision restricting the applicable tracts to private
residential use only. In relevant part, the declaration
states: ‘‘Witnesseth, that said trustees hereby place
upon the land records the following restrictions, cove-
nants, agreements, reservations, easements and infor-
mation which shall govern the use of any tract of land
whenever imposed in a deed of conveyance, by refer-
ence to this declaration, from any person or corporation
authorized by either of the said trustees or their succes-
sors, by instrument recorded in the land records, to
impose the terms hereof on portions of the land owned
by such person or corporation and shall run with the
land so conveyed and shall enure to the benefit of the
owners of tracts of land affected by the terms hereof,
to the person or corporation authorized to impose the
terms hereof and, where applicable, to the municipal-
ity . . . .’’
Article 2 of the declaration provides: ‘‘No animals,
poultry or water fowl, except usual pets quartered
within the family dwelling at night, shall be kept on a
Tract.5 Exceptions to this provision may be made for
not over two year periods if consented to in writing by
the Purchaser6 of each Tract within two hundred (200)
feet of the Tract where the exception is proposed.’’
(Footnotes added.)
Article 8 of the declaration provides: ‘‘Any commer-
cial 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.’’
The final article of the declaration, Article 35, pro-
vides in relevant part: ‘‘The intent of this Declaration
is to protect property values. Developer7 intends to
enforce the provisions of this Declaration whenever it
feels its interest may be threatened. Enforcement action
may be taken, with or without Developer’s participa-
tion, by any aggrieved Purchaser of a Tract, or by any
group of aggrieved Purchasers represented by a Prop-
erty Owner’s Association, or otherwise.
‘‘Enforcement of this Declaration or any part thereof
shall be by proceedings at law or in equity against any
person or persons violating or attempting to violate any
right herein contained, and said proceedings may be
either to restrain any violation thereof, to recover dam-
ages therefor, or to require corrective measures to
accomplish compliance with the intent of this Declara-
tion.’’ (Footnote added.)
The deed conveying the property known as 37 Mill
Stream Road to the plaintiffs, which was recorded on
September 26, 1977, in volume 1680, page 100, of the
Stamford land records, provides in relevant part: ‘‘Said
premises are conveyed subject to any restrictions or
limitations imposed or to be imposed by governmental
authority, including the zoning and planning and wet-
lands rules and regulations of the City of Stamford;
restrictive covenants and agreements contained in a
certain deed from Harry Waldron Havemeyer et al to
Empire Estates, Incorporated dated August 14, 1956
and recorded in said records in Book 792 at Page 118,
as modified by an agreement dated March 27, 1957 and
recorded in said records in Book 808 at Page 355; a
declaration made by Harry E. Terhune and Gordon R.
Paterson, as trustees, dated March 15, 1961 and
recorded in said records in Book 917 at Page 114 . . . .’’
Materially similar language appears in the defendant’s
chain of title as well.8 In a deed conveying the property
known as 59 Mill Stream Road and recorded on Septem-
ber 30, 1983, in volume 2296, page 146, of the Stamford
land records, the following language appears: ‘‘Said
premises are conveyed subject to planning and zoning
rules and regulations of the City of Stamford and any
other Federal, State or local regulations, taxes and
assessments of the City of Stamford becoming due and
payable hereinafter, restrictive covenants and agree-
ments as contained in a deed from Harry Waldron
Havemeyer, et al to Empire Estates, Incorporated dated
August 14, 1956 and recorded in the land records of
said Stamford in book 792 at page 118, except as the
same are modified by an agreement dated March 27,
1957 and recorded in said records in book 808 at page
355, the terms of a declaration made by Harry E. Ter-
hune and Gordon R. Patterson, as Trustees, dated
March 14, 1961 and recorded in said records in book
917 at page 114, the rights of others, including the City
of Stamford, in and to any brook, river, stream or water
flowage easement crossing and bounding said tract of
land.’’ This 1983 deed is referred to in the 2006 deed
conveying the property to the defendant, which is
recorded in volume 8602, page 54, of the Stamford
land records.
Having set forth some relevant facts, we turn to the
defendant’s claim with respect to standing. As set forth
previously in this opinion, the court concluded that
the plaintiffs had standing to enforce the restrictive
covenant in the 1956 deed related to commercial activ-
ity, as well as the restrictions set forth in the 1961
declaration concerning the keeping of chickens and the
parking of commercial vehicles. The court ruled that
the plaintiffs had standing to enforce all of these restric-
tions because the parties’ properties were ‘‘part of a
common scheme of development’’ and ‘‘the deeds from
both parties contain the deed restrictions at issue in
this case.’’ The court rejected not only the defendant’s
special defenses, but her jurisdictional argument that
the plaintiffs lacked standing to enforce the restriction
in the 1956 deed from the original grantors to Empire
Estates, the developer of the properties that are now
owned by the plaintiffs and the defendant. As stated
previously, the 1956 deed restriction at issue, as modi-
fied in 1957, limits the subject premises to ‘‘private
residential purposes only . . . .’’
Echoing the arguments she advanced before the trial
court, the defendant claims that the court improperly
concluded that the plaintiffs had standing to enforce
the restrictive covenant in the 1956 deed, as modified
in 1957, which generally prohibits commercial activity
on the property. The defendant argues that the restric-
tive covenant in the 1956 deed, by its terms, inured to
the benefit of the original grantors, Horace Havemeyer
and Harry Waldron Havemeyer, and their successors,
not to the plaintiffs. Moreover, the defendant argues
that the court erroneously determined that the plaintiffs
could enforce the restrictive covenant in the 1956 deed
because the parties’ properties were part of a common
scheme of development. We note that the defendant
does not dispute that the plaintiffs had standing to
enforce the restrictive covenants that appear in the 1961
declaration, which, thereafter, were imposed on the
original grantees of the parties’ properties when Empire
Estates conveyed its interests in individual tracts to
such grantees.
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to hear the case.
Because standing implicates the court’s subject matter
jurisdiction, the plaintiff ultimately bears the burden of
establishing standing. A trial court’s determination of
whether a plaintiff lacks standing is a conclusion of
law that is subject to plenary review on appeal. We
conduct that plenary review, however, in light of the
trial court’s findings of fact, which we will not overturn
unless they are clearly erroneous. . . . In undertaking
this review, we are mindful of the well established
notion that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged. . . . This involves a two
part function: where the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision;
where the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous.’’ (Citations omitted; internal quotation
marks omitted.) Success, Inc. v. Curcio, 160 Conn. App.
153, 162, 124 A.3d 563, cert. denied, 319 Conn. 952, 125
A.3d 531 (2015).
To the extent that the standing issue requires us to
construe language found in deeds, we observe that
‘‘[t]he determination of the intent behind language in a
deed, considered in the light of all the surrounding
circumstances, 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.’’ (Internal quotation marks omitted.) Avery
v. Medina, 151 Conn. App. 433, 440–41, 94 A.3d 1241
(2014).
Generally, ‘‘restrictive covenants fall into three
classes: (1) mutual covenants in deeds exchanged by
adjoining landowners; (2) uniform covenants contained
in deeds executed by the owner of property who is
dividing his property into building lots under a general
development scheme; and (3) covenants exacted by a
grantor from his grantee presumptively or actually for
the benefit and protection of his adjoining land which
he retains.’’ (Internal quotation marks omitted.) Bueno
v. Firgeleski, 180 Conn. App. 384, 393–94, 183 A.3d
1176 (2018).
‘‘In the first class [of restrictive covenants] either
party or his assigns may enforce the restriction because
there is a mutuality of covenant and the rights are recip-
rocal.’’ Stamford v. Vuono, 108 Conn. 359, 364, 143 A.
245 (1928). There is no dispute that the restrictive cove-
nant at issue in the 1956 deed, which is not a mutual
covenant entered into by adjoining landowners, does
not fall within the first class of restrictive covenants.
‘‘With respect to the second class of covenants, any
grantee under such a general or uniform development
scheme may enforce the restrictions against any other
grantee.’’ (Internal quotation marks omitted.) Cappo v.
Suda, 126 Conn. App. 1, 4, 10 A.3d 560 (2011). ‘‘In the
second class [of restrictive covenants], upon the same
theory of mutuality of covenant and consideration [that
applies when there are mutual covenants between own-
ers of adjoining lands], any grantee may enforce the
restriction against any other grantee.’’ Stamford v.
Vuolo, supra, 108 Conn. 364. ‘‘The factors that help to
establish the existence of an intent by a grantor to
develop a common plan are: (1) a common grantor sells
or expresses an intent to put an entire tract on the
market subject to the plan; (2) a map of the entire tract
exists at the time of the sale of one of the parcels; (3)
actual development according to the plan has occurred;
and (4) substantial uniformity exists in the restrictions
imposed in the deeds executed by the grantor. . . .
‘‘The factors that help to negate the presence of a
development scheme are: (1) the grantor retains
unrestricted adjoining land; (2) there is no plot of the
entire tract with notice on it of the restrictions; and (3)
the common grantor did not impose similar restrictions
on other lots. . . .
‘‘Early Connecticut case law acknowledges the power
of property holders with substantially uniform restric-
tive covenants obtained by deeds in a chain of title from
a common grantor to enforce the restrictions against
other owners with similar restrictive covenants. When,
under a general development scheme, the owner of
property divides it into building lots to be sold by deeds
containing substantially uniform restrictions, any
grantee may enforce the restrictions against any other
grantee. . . .
‘‘When making a finding as a matter of law that a
common development scheme exists, courts look to
four factors: (1) the common grantor’s intent to sell all
of the subdivided plots; (2) the existence of a map of
the subdivision; (3) actual development of the subdivi-
sion in accordance with the general scheme; and (4)
substantially uniform restrictions contained in the
deeds of the subdivided plots.’’ (Citations omitted; inter-
nal quotation marks omitted.) DaSilva v. Barone, 83
Conn. App. 365, 371–73, 849 A.2d 902, cert. denied, 271
Conn. 908, 859 A.2d 560 (2004).
‘‘With respect to the third class of covenants, the
original grantor, who is the owner of the property bene-
fited, and his assigns may enforce [the covenant] against
subsequent purchasers of the property burdened. If the
restrictive covenant is for the benefit of the remaining
land of the grantor, it is an easement running with the
land and may be enforced by a subsequent purchaser
of the remaining land against the prior grantee and his
successors in title . . . .’’ (Internal quotation marks
omitted.) Bueno v. Firgeleski, supra, 180 Conn. App.
394. ‘‘In the third class [of restrictive covenants], there
is no mutuality between the grantees, if there are more
than one, and therefore no right in one grantee to
enforce the restrictions against another grantee upon
[the theory of mutuality of covenant and consider-
ation].’’ Stamford v. Vuolo, supra, 108 Conn. 365.
‘‘[W]hen presented with a violation of a restrictive
covenant, the court is obligated to enforce the covenant
unless the defendant can show that enforcement would
be inequitable.’’ Gino’s Pizza of East Hartford, Inc. v.
Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984); Grady
v. Schmitz, 16 Conn. App. 292, 301–302, 547 A.2d 563
(same), cert. denied, 209 Conn. 822, 551 A.2d 755 (1988).
Restrictive covenants, by their nature, are in derogation
of the common-law right to use land for all lawful pur-
poses that go with title and possession. See Pulver v.
Mascolo, 155 Conn. 644, 649, 237 A.2d 97 (1967); Nep-
tune Park Assn v. Steinberg, 138 Conn. 357, 361, 84
A.2d 687 (1951). Accordingly, ‘‘[a] restrictive covenant
must be narrowly construed and ought not to be
extended by implication. . . . Moreover, if the cove-
nant’s language is ambiguous, it should be construed
against rather than in favor of the covenant.’’ (Citation
omitted; internal quotation marks omitted.) Morgenbes-
ser v. Aquarion Water Co. of Connecticut, 276 Conn.
825, 829, 888 A.2d 1078 (2006); see also Bueno v. Firgel-
eski, supra, 180 Conn. App. 411 (same); Alligood v.
LaSaracina, 122 Conn. App. 479, 482, 999 A.2d 833
(2010) (same).9
Having narrowed the nature of the claim before us
and having set forth the relevant legal principles, we
turn to the restrictive covenant at issue in the 1956
deed. As we have explained previously, the 1956 deed,
executed by the original grantors, set forth two restric-
tive covenants, one of which limited the land conveyed
by the deed to private residential use. The following
language precedes reference to the two restrictive cove-
nants: ‘‘This deed is given and accepted upon the follow-
ing express covenants and agreements which shall run
with the land herein conveyed and shall be binding
upon the grantee, its successors and assigns, and shall
enure to the benefit of the remaining land of the grant-
ors lying westerly of the premises herein conveyed
. . . .’’ (Emphasis added.)
As the emphasized language reflects, the restrictive
covenants set forth in the 1956 deed were expressly
intended to inure to the benefit of the remaining land
of the original grantors that lies west of the premises
conveyed in the 1956 deed. The premises conveyed
included tracts that were subsequently conveyed to the
plaintiffs and the defendant. The plaintiffs have neither
alleged nor proven that they are entitled to enforce the
restrictive covenant at issue under a theory of mutuality
of covenant and consideration. In the present case, the
original grantors, for their benefit, extracted covenants
from the grantees of the 1956 deed. Nothing in the
unequivocal language of the deed either suggests that
the restrictive covenant at issue was intended to benefit
the original or subsequent grantees of the 1956 deed,
or that the original grantors were dividing their property
into building lots, thus imposing the restrictive cove-
nant upon grantees as part of a general development
scheme. Instead, the covenants unmistakably fall within
the class of ‘‘covenants exacted by a grantor from his
grantee presumptively or actually for the benefit and
protection of his adjoining land which he retains.’’
(Internal quotation marks omitted.) Bueno v. Firgel-
eski, supra, 180 Conn. App. 394.
Because there is no allegation or evidence that the
plaintiffs are the original grantors of the 1956 deed, or
their successors in interest, we conclude that they
lacked standing to enforce the restrictive covenant in
the deed that limited the use of the defendant’s property
to residential purposes.10 Accordingly, we conclude that
the court lacked subject matter jurisdiction over this
claim and should have dismissed the plaintiffs’ cause
of action to the extent that they sought to enforce this
restrictive covenant.
II
Next, the defendant claims that the court erred by
granting the plaintiffs injunctive relief on the basis of
restrictive covenants that appear in the declaration of
restrictions that applies to the parties’ real properties.
We agree.
Having concluded in part I of this opinion that the
plaintiffs lacked standing to enforce the restrictive cov-
enant at issue in the 1956 deed, on which the plaintiffs
expressly rely, we turn our analysis to the propriety
of the relief afforded to the plaintiffs by the court in
enforcing the restrictive covenant at issue contained in
Article 2 and Article 8 of the 1961 declaration. As stated
in part I of this opinion, the defendant acknowledges
before this court that the plaintiffs have the right to
enforce the restrictive covenants codified in the decla-
ration. Indeed, in Article 35 of the declaration, that right
is expressly conveyed on every aggrieved purchaser of
a tract of land on which the declaration has been
imposed, a class of persons that includes the plaintiffs.
A
Although the defendant acknowledges that the plain-
tiffs may enforce the restrictive covenants set forth in
the declaration, the defendant argues that, in awarding
the plaintiffs injunctive relief regarding the Dodge Ram
pickup truck, the court improperly afforded the plain-
tiffs relief under Article 8 of the declaration because
the operative complaint did not set forth a claim for
relief under this portion of the declaration. The defen-
dant correctly observes that, in their operative com-
plaint, the plaintiffs relied, first, on the restriction in the
1956 deed limiting the use of the property to residential
purposes and, second, the restriction in Article 2 of the
declaration related to the presence of ‘‘animals, poultry,
or water fowl,’’ but not the restriction in the declaration,
in Article 8, related to the presence of commercial vehi-
cles. In both her principal and reply briefs before this
court, the defendant argues that the court improperly
relied on, and granted the plaintiffs relief under, Article
8 in light of the fact that the plaintiffs sought to amend
their complaint to include a claim for relief under Article
8 but were denied permission to do so.
The record further reflects that, on May 11, 2017, the
plaintiffs filed a request for leave to file an amended
complaint. Among the amendments sought by the plain-
tiffs, in count one, was to rely on and obtain relief with
respect to the restrictive covenant in Article 8 of the
declaration, which states ‘‘that any commercial vehicles
used by an occupant of a tract shall be kept within a
garage with doors closed except for brief periods for
loading or unloading.’’ Additionally, the plaintiffs sought
to add a second count in which they sought injunctive
relief to restrain the defendant from violating the Stam-
ford zoning regulations by operating a landscaping busi-
ness from her property. The court, Povodator, J., sus-
tained the defendant’s written objections to the request
for leave to amend.
Following the trial, the defendant filed proposed
orders that were based on the complaint dated June
29, 2016, not the proposed revised complaint. In a
motion for reconsideration of the court’s denial of the
defendant’s motion to reargue and/or to reconsider its
ruling, which the court denied, the defendant argued
that the plaintiffs’ attempt to enforce the restriction in
the declaration related to commercial vehicles was time
barred, yet also stated, in relevant part, that the court
had denied the plaintiffs’ ‘‘eleventh hour move’’ seeking
to amend their complaint.
In this appeal, the plaintiffs have not filed a cross
appeal to raise a claim of error related to the court’s
ruling denying their request to amend their complaint.
Evidence concerning the Dodge Ram pickup truck was
presented at trial by the plaintiffs and, in general terms,
they attempted to demonstrate that because it was used
in connection with the defendant’s landscaping busi-
ness, it was a commercial vehicle that needed to be
stored in a garage. Presently, the plaintiffs argue that
the relief afforded to them with respect to the Dodge
Ram pickup truck, however, is not necessarily related
to the restrictive covenant in Article 8 of the declaration.
They argue that the defendant interprets the operative
complaint, which the plaintiffs were not permitted to
amend, too narrowly. The plaintiffs further argue that
it is of no consequence that they failed in their complaint
to specifically allege that they sought to restrict the
defendant’s storage of commercial vehicles, including
the Dodge Ram pickup truck that was the subject of
injunctive relief granted to them, or that they did not
therein refer explicitly to the restrictive covenant in
Article 8 of the declaration. The plaintiffs reason that
because they plainly sought in their complaint to
enforce the restrictive covenant in the 1956 deed, which
restricted the defendant to use her property for residen-
tial purposes only, the defendant had sufficient notice
that the plaintiffs were seeking relief with respect to
any type of commercial activity, including the keeping
of commercial trucks used in connection with the defen-
dant’s landscaping business, such as the Dodge Ram
pickup truck. As the plaintiffs argue, ‘‘[t]he complaint
gave sufficient notice that the defendant would have
to cease all commercial activity on the property and
comply with the restrictive covenants. Therefore, it
would be improper for this court to reverse the judg-
ment based on some sort of late claimed surprise to the
defendant or a hyper technicality as to the pleadings.’’
With respect to this issue, the plaintiffs seem to over-
look the significance of the fact that, in its memorandum
of decision, the court expressly referred to the restric-
tive covenant set forth in Article 8 of the declaration
and found that ‘‘the Dodge pickup truck is a commercial
vehicle under the restrictive covenant.’’ We observe that
‘‘[t]he principle that a plaintiff may rely only upon what
[it] has alleged is basic. . . . It is fundamental in our
law that the right of a plaintiff to recover is limited to
the allegations of [its] complaint. . . . What is in issue
is determined by the pleadings and these must be in
writing. . . . Once the pleadings have been filed, the
evidence proffered must be relevant to the issues raised
therein. . . . In other words, [a] plaintiff may not allege
one cause of action and recover upon another. . . .
Indeed, [a] judgment upon an issue not pleaded would
not merely be erroneous, but it would be void.’’ (Cita-
tions omitted; internal quotation marks omitted.) Wat-
son Real Estate, LLC v. Woodland Ridge, LLC, 187
Conn. App. 282, 298, 202 A.3d 1033 (2019).
To the extent that the court ordered injunctive relief
pertaining to the Dodge Ram pickup truck that was, as
the plaintiffs suggest, the result of the court’s enforce-
ment of a restrictive covenant in the 1956 deed, we
conclude for the reasons set forth in part I of this opin-
ion that the plaintiffs lacked standing to enforce such
restrictive covenant and, thus, such relief was improper
because it flowed from a claim over which the court
lacked subject matter jurisdiction. To the extent that
the court awarded injunctive relief pertaining to the
pickup truck because it was enforcing the restrictive
covenant set forth in Article 8 of the declaration, which
specifically governs commercial vehicles, such relief
was improper because it was premised on a claim that
was not properly before the court.11
B
We next address the defendant’s argument that the
relief afforded to the plaintiffs with respect to the keep-
ing of chickens was improper. We agree.
The following facts are relevant to this claim. As
set forth previously in this opinion, Article 2 of the
declaration provides: ‘‘No animals, poultry or water
fowl, except for usual pets quartered within the family
dwelling at night, shall be kept on a Tract. Exceptions
to this provision may be made for not over two year
periods if consented to in writing by the Purchaser of
each Tract within two hundred (200) feet of the Tract
where the exception is proposed.’’
In its decision, the court observed that the defendant
claimed, by way of special defense, that the plaintiffs’
claim for enforcement of the restrictive covenant con-
cerning chickens on her property was moot because,
prior to trial, she removed the chickens from her prop-
erty. The court stated: ‘‘Both parties agree that the
chickens have been removed from the defendant’s prop-
erty. In addition, both parties agree that the chicken
coops are still on the defendant’s property. The defen-
dant testified that she moved the chickens to another
property she owns and does not have any 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.’’ Among its orders, the court set forth the
following: ‘‘An injunction ordering the defendant from
keeping any chickens or roosters upon the defendant’s
property; (the defendant is not ordered to remove the
chicken coops) . . . .’’
The defendant raises two distinct arguments with
respect to the injunctive relief afforded the plaintiffs
that applied to the defendant’s keeping of chickens or
roosters on her property. First, the defendant claims
that the court improperly rejected her special defense
that the cause of action, insofar as it was based on
her keeping of chickens on her property, was rendered
moot in light of the undisputed fact that she had
removed the chickens from her property prior to the
trial. Second, the defendant claims that, even if the
issue was justiciable, the court lacked the authority to
prohibit her from keeping chickens on her property
forever, because such order exceeded the scope of the
restrictive covenant set forth in Article 2 of the declara-
tion. We address each argument in turn.
1
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable. . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the
trial] court cannot grant . . . any practical relief
through its disposition of the merits . . . .’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Valvo v. Freedom of Information Commis-
sion, 294 Conn. 534, 540–41, 985 A.2d 1052 (2010); see
also Mendillo v. Tinley, Renehan & Dost, LLP, 329
Conn. 515, 523, 187 A.3d 1154 (2018) (discussing justi-
ciability). ‘‘[I]t is not the province of [the] courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow. . . . When . . . events
have occurred that preclude [the] court from granting
any practical relief through its disposition of the merits,
a case has become moot.’’ (Internal quotation marks
omitted.) Dutkiewicz v. Dutkiewicz, 289 Conn. 362,
366, 957 A.2d 821 (2008). ‘‘[B]ecause an issue regarding
justiciability raises a question of law, our appellate
review is plenary.’’ Office of the Governor v. Select Com-
mittee of Inquiry, 271 Conn. 540, 569, 858 A.2d 709
(2004).
In a special defense, the defendant alleged in relevant
part, as follows: ‘‘(1) On April 6, 2016, the Saw Mill
[Association] Board of Directors sent a letter to the
defendant signed by Julie Hollenberg, President of the
Saw Mill Association.
‘‘(2) The letter directed the defendant to obtain neces-
sary consents from abutting neighbors within 200 feet
[of her property] and, if unable to do so, to remove the
‘chickens’ from [the] defendant’s property.
‘‘(3) The defendant did not obtain consent from all
neighbors within 200 feet.
‘‘(4) In response to the letter [from] the Saw Mill
Association, the defendant has relocated the chickens
or any other fowl to another location in the state of Con-
necticut.
‘‘(5) There are no ‘chickens’ or other fowl on the
defendant’s property. The restrictive covenant does not
prohibit chicken coops from being on the defendant’s
property.
‘‘(6) The plaintiffs may not claim that they are entitled
to injunctive relief and allege irreparable harm when,
in fact, the defendant removed the chickens or other
fowl from her property as directed by the Saw Mill Asso-
ciation.’’
As the court observed in its memorandum of decision,
it was not disputed at trial that, prior to the time of
trial, the defendant had removed all chickens, but not
the chicken coops, from her property at 59 Mill Stream
Road. In relevant part, Hollenberg, one of the parties’
neighbors and a member of the board of the Saw Mill
Association, testified at trial that, in 2016, she became
aware of complaints by some of the defendant’s neigh-
bors about the fact that the defendant was keeping
chickens on her property. Hollenberg raised the issue
before the board and spoke with the defendant, who
indicated that she had been unaware of the prohibition
in Article 2 of the declaration but, after learning of
the complaints, had attempted to obtain the necessary
permission from her neighbors to continue to keep the
chickens on her property in accordance with Article
2. The defendant, however, was unable to obtain the
consent of all neighbors. Hollenberg testified that, in
her conversations with the defendant concerning the
issue, the defendant did not resist her efforts to address
the problem and that, after she sent the defendant an
‘‘official correspondence’’ from the board asking her to
remove the chickens, the defendant was ‘‘very compli-
ant’’ about doing so.
At trial, the defendant testified that, in either Septem-
ber or October of 2016, she removed the chickens,12
which had been kept in chicken coops, from her prop-
erty at 59 Mill Stream Road. She testified, however, that
the coops, which were built by her husband, are still
present on the property. The defendant testified, as
well, that after she had discussed the matter with Hol-
lenberg and was unable to secure permission to keep
the chickens on her property in accordance with Article
2 of the declaration, she took immediate action by build-
ing a new enclosure for the chickens and moving them
to a separate farm that she owns in Connecticut.
At the time of trial, the defendant relied on the fact
that the chickens were no longer present on the prop-
erty. The plaintiffs argued that, although the chickens
had been relocated by the defendant to her farm and
the violation of the restrictive covenant was limited to
the presence of the chickens, but not the presence of the
chicken coops, the continued presence of the chicken
coops on the defendant’s property posed a ‘‘threat’’ that
the defendant could bring the chicken coops back to
her property at any time. The plaintiffs argued ‘‘[t]here’s
no other use for those chicken coops, there’s been no
testimony in that regard.’’
We observe that the plaintiffs did not bring a declara-
tory judgment action pursuant to Practice Book § 17-
55 to seek resolution of an ongoing dispute between
the parties related to the presence of chickens on the
defendant’s property. Rather, in their prayer for relief
in this action to enforce restrictive covenants, the plain-
tiffs asked for ‘‘[a]n injunction ordering the defendant
to immediately remove the chickens and chicken coops
from the defendant’s property . . . .’’ Article 35 of the
declaration afforded the plaintiffs, as ‘‘aggrieved Pur-
chaser[s] of a Tract,’’ the right to enforce the declaration
against ‘‘any person or persons violating or attempting
to violate any right herein contained . . . .’’
In its decision, the court acknowledged that the
chickens were no longer present at 59 Mill Stream Road
but reasoned that enforcing the restrictive covenant in
Article 2 of the declaration ‘‘would provide practical
relief to the [plaintiffs] and would resolve any ambiguity
about whether the chickens could be returned to the
property . . . .’’13 Thereafter, the court afforded the
plaintiffs relief by prohibiting the defendant from keep-
ing any ‘‘chickens or roosters’’ on her property.
Presently, the defendant argues that the court
improperly failed to conclude that the issue concerning
chickens was moot. She states: ‘‘[The defendant]
removed the chickens from her property when she was
not able to obtain written permission from her neigh-
bors within 200 feet of her property to keep the chick-
ens. [The defendant] began the process of relocating
the chickens to her upstate farm before this action
was commenced and finished the process [at] least six
months before the trial commenced. [The defendant]
kept the chicken coops but got rid of the chickens. Her
husband built the chicken coops and [the defendant]
believed that they could be put to other uses on her
property.’’ Additionally, the defendant argues that ‘‘[t]he
trial court had no authority to grant injunctive relief
against [her] when, in fact, there were no chickens to
be removed from the property.’’
‘‘It is well settled that a defendant’s voluntary cessa-
tion of a challenged practice does not deprive a . . .
court of its power to determine the legality of the prac-
tice, because, [i]f it did, the courts would be compelled
to leave [t]he defendant . . . free to return to his [or
her] old ways. . . . The voluntary cessation exception
to the mootness doctrine is founded on the principle
that a party should not be able to evade judicial review,
or to defeat a judgment, by temporarily altering ques-
tionable behavior. . . . Thus, the standard for
determining whether a case has been mooted by the
defendant’s voluntary conduct is stringent, and a case
becomes moot only if subsequent events [make] it abso-
lutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur. . . . The heavy
burden of persua[ding] the court that the challenged
conduct cannot reasonably be expected to start up
again lies with the party asserting mootness.’’ (Citations
omitted; internal quotation marks omitted.) Boisvert v.
Gavis, 332 Conn. 115, 139, A.3d (2019); see also
Windels v. Environmental Protection Commission,
284 Conn. 268, 281, 933 A.2d 256 (2007) (relying on fact
that defendant had ‘‘not alleged, much less established,
that it does not intend to resume’’ activity at issue in
concluding that voluntary cessation of activity did not
render claim moot).
Although the court did not expressly consider
whether the defendant, who asserted the issue of moot-
ness, had satisfied her heavy burden of demonstrating
that subsequent events made it absolutely clear that
the conduct at issue could not reasonably be expected
to recur, we readily conclude that evidence of such a
nature was lacking. To be sure, there was evidence that
the defendant relocated her chickens once she was
informed that some of her fellow neighbors in the Saw
Mill Association raised a complaint that her conduct
violated Article 2 of the declaration. However, the
defendant’s testimony reflects that she still possesses
chickens at her farm in Connecticut and that the coops
in which the chickens were kept remain on her property
at 59 Mill Stream Road. Furthermore, the evidence is
not in dispute that, in response to the complaints of
some of her neighbors, the defendant attempted to
obtain the permission required by Article 2 to continue
to keep the chickens at 59 Mill Stream Road. There is
no evidence of subsequent events that make it unrea-
sonable to expect the prohibited conduct to recur, and
we observe that the defendant has neither alleged nor
presented evidence to establish that she does not intend
to resume the prohibited conduct in the future.
In light of the foregoing, we conclude that although
there was undisputed evidence that the chickens were
no longer present on the defendant’s property, the court
had jurisdiction to consider the claim and afford the
plaintiffs practical relief in connection with this aspect
of their complaint.
2
Next, we address the defendant’s argument that, in
prohibiting the defendant ‘‘from keeping any chickens
or roosters upon the defendant’s property,’’ the court
exceeded the scope of the restrictive covenant it pur-
ported to enforce. We observe, once again, that, apart
from arguing that the plaintiffs’ claim for relief under
Article 2 of the declaration was moot, the defendant
does not argue that the court improperly enforced the
restrictive covenant in Article 2 but, rather, that the
court’s order of injunctive relief was overbroad.
As we explained previously in part I of this opinion,
this court’s interpretation of the language of the declara-
tion presents a question of law over which we exercise
plenary review. Avery v. Medina, supra, 151 Conn. App.
440–41. Here, the plain language of Article 2 of the
declaration unambiguously provides an exception to
the prohibition for keeping animals, poultry, or water
fowl that are not quartered within a family dwelling at
night. The declaration provides: ‘‘Exceptions to this
provision may be made for not over two year periods
if consented to in writing by the Purchaser of each
Tract within two hundred (200) feet of the Tract where
the exception is proposed.’’ (Emphasis added). The
court’s order constituted a blanket prohibition against
the defendant and, as she argues, precludes her from
availing herself of any permissible exceptions in the
future, as is her right. For this reason, we conclude that
the court’s broad award of injunctive relief with respect
to the keeping of chickens on the defendant’s property
exceeds the plaintiffs’ rights under the declaration, to
the defendant’s detriment. Although we affirm the judg-
ment of the trial court enforcing Article 2 of the declara-
tion, the proper remedy for the error in the court’s order
of injunctive relief is to vacate the court’s order of
injunctive relief prohibiting the defendant from keeping
any chickens or roosters on her property at 59 Mill
Stream Road, and to direct the court to fashion an
appropriate order that is consistent with Article 2 of
the declaration, as interpreted in this opinion.
The judgment enforcing the restrictive covenants is
reversed to the extent that the court enforced a restric-
tive covenant that appears in the 1956 deed and the
restrictive covenant that appears in Article 8 of the
declarations. The orders of injunctive relief related to
these restrictive covenants (orders 1, 3, 4, 5, 6, and
7) are vacated. The judgment enforcing the restrictive
covenant that appears in Article 2 of the declaration,
relating to the keeping of ‘‘animals, poultry or water
fowl,’’ is affirmed, but the order of injunctive relief
prohibiting the defendant from keeping any chickens
or roosters on her property (order 2) is vacated and
the case is remanded to the trial court with direction
to order appropriate relief that is consistent with Article
2 of the declaration.
In this opinion MOLL, J., concurred.
1
We note that the defendant raised three distinct claims on appeal. The
first claim that we analyze in this appeal, which concerns the issue of
standing, encompasses the issues raised in the first two claims that are set
forth in the defendant’s brief. These claims are (1) whether the court properly
concluded that the plaintiffs had ‘‘standing to enforce a private deed restric-
tion that was expressly stated to inure to the benefit of the retained land
of the grantor’’ and (2) whether, in determining that the plaintiffs had stand-
ing to enforce the restrictive covenants in the deed, the court properly
concluded ‘‘that the deed restrictions at issue in this case were collectively
part of a common plan of development . . . .’’
2
At trial, the defendant abandoned the special defense of unclean hands.
3
After it rendered judgment in the plaintiffs’ favor, the court granted a
motion to stay the judgment pending the outcome of the present appeal.
Also, the court denied a motion to open the judgment filed by the defendants.
4
In 1957, an agreement between the original grantors, Empire Estates,
and Country Lands, Inc., to whom a portion of the land at issue had been
conveyed by Empire Estates, was recorded in volume 808, page 355, of the
Stamford land records. Although it does not affect our analysis of the present
claim, we observe that the agreement modified the first restrictive covenant
in the 1956 deed, set forth previously, as follows: ‘‘[T]hat portion of [the]
restrictive covenant . . . which is contained within parenthesis shall be of
no further force and effect and there shall be substituted in lieu of the
language contained within parenthesis, effective from the date hereof, the
following language: (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).’’
5
The declaration defines a ‘‘Tract’’ as ‘‘[a] parcel of land shown and
delineated on a map filed in the land records of the MUNICIPALITY which
has been conveyed by the DEVELOPER to a PURCHASER.’’
6
The declaration defines a ‘‘Purchaser’’ as ‘‘[a]ny Purchaser of a TRACT
upon which this Declaration has been imposed, and his, her or its successors
in title.’’
7
The declaration defines a ‘‘Developer’’ as ‘‘[t]he person or corporation
authorized by either of the trustees executing this Declaration or their
successors to make subject to this Declaration any property conveyed by
said person or corporation.’’
8
It does not appear to be in dispute that the parties’ properties are located
in the Saw Mill Association, a ‘‘neighborhood association’’ that encompasses
142 properties on eight contiguous streets in Stamford. The plaintiffs pre-
sented evidence that the restrictive covenants that appear in the chain of
title of the parties’ properties are found in the chain of title of several other
property owners in the Saw Mill Association.
9
The dissenting opinion cites to Contegni v. Payne, 18 Conn. App. 47,
52, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989), in support
of the principle that property owners have an equitable right to enforce
against other property owners restrictions that are imposed as part of a
uniform development plan. According to the dissent, ‘‘[r]egardless of the
genesis’’ of the restrictive covenant at issue in the present case, equity favors
the plaintiffs’ ability to enforce it. For several reasons, we disagree with
this rationale. In light of the principles cited previously, we are mindful that
courts must not extend restrictive covenants by implication. Regardless of
Empire Estate’s intent, it is undisputed that it failed to include the restriction
at issue in its lengthy declaration that applied to the properties in the
subdivision. Instead, in the deeds conveying tracts to the parties’ predeces-
sors in title, Empire Estates referred to the fact that the tracts were ‘‘subject
to’’ the restrictive covenant that appeared in the deed from the original
grantor. It is noteworthy that, in the parties’ deeds, Empire Estates also
referred to the fact that the tracts were ‘‘subject to’’ a variety of additional
restrictions or limitations, including but not limited to those which could
be imposed by governmental authority, zoning regulations, city regulations,
taxes, and easements. Certainly, despite the fact that these additional restric-
tions or limitations might apply with equal force to the parties and others
in their subdivision, it cannot reasonably be suggested that the plaintiffs
have the right to enforce them.
10
The dissenting opinion states that Maganini v. Hodgson, 138 Conn. 188,
192–93, 82 A.2d 801 (1951); Mellitz v. Sunfield Co., 103 Conn. 177, 182, 129
A. 228 (1925); Prime Locations of CT, LLC v. Rocky Hill Development, LLC,
167 Conn. App. 786, 796 n.10, 145 A.3d 317, cert. denied, 323 Conn. 935, 150
A.3d 686 (2016); and 5011 Community Organization v. Harris, 16 Conn.
App. 537, 540, 548 A.2d 9 (1988); support the conclusion that because the
covenant limiting the use of the property for residential purposes was part
of a general development scheme, the plaintiffs had the right to enforce it
against the defendant. Respectfully, we believe that the cases cited by the
dissent broadly apply to restrictions that are imposed as a uniform scheme
of development, the very fact that has not been established by the facts in
the present case. Further, we believe that the cases cited differ materially
from the facts at issue in the present case and, thus, do not support the
conclusion that the covenant at issue in the present case is enforceable by
the plaintiffs against the defendant.
In Maganini, the original grantor of property included a restrictive cove-
nant limiting the use of the property for residential purposes in the deed
conveying the property to a developer who subsequently conveyed it by
deed to the parties in Maganini. Maganini v. Hodgson, supra, 138 Conn.
190. There is no indication, however, that the original grantor included this
covenant for its benefit. The court explained: ‘‘The tract was originally
deeded to the developer restricted to residential purposes. He put a map
on record showing its subdivision. In his first deed [to one of the plaintiffs
in Maganini], he expressly obligated himself to impose on his remaining
land and recited the restrictions which were repeated in later deeds, in
many respects verbatim. The [trial] court was fully justified in concluding
that a uniform plan or scheme existed.’’ (Emphasis added.) Id., 193. Our
Supreme Court observed that, in a situation involving ‘‘a general development
scheme, [in which] the owner of property divides it into building lots to be
sold by deeds containing substantially uniform restrictions, any grantee
may enforce the restrictions against any other grantee.’’ (Emphasis added;
internal quotation marks omitted.) Id., 192. In the present case, in deeds to
subsequent tract owners, the developer referred to restrictions that expressly
inured to the benefit of the original grantor, which restrictions appeared in
the deed conveying the property from the original grantor to the developer.
In Mellitz, an original grantor conveyed property to a developer by means
of a deed that contained a restrictive covenant that, by its terms, ran with
the land and was ‘‘enforceable at law and equity by the grantor herein named
or by the owner at any time of any portion of said premises.’’ (Emphasis
added; internal quotation marks omitted.) Mellitz v. Sunfield Co., supra,
103 Conn. 179. In light of this language in the deed, our Supreme Court
relied on the fact that the restrictions that appeared in the deed between
the original grantor and the developer ‘‘were for the common benefit of all
subsequent lot owners in the tract conveyed.’’ Id., 182. As we have discussed
previously in this opinion, the restrictive covenant at issue in the present
case expressly inured to the benefit of the original grantor and not to any
grantee of the deeded property.
Although 5011 Community Organization did not involve a claim that a
party lacked standing to enforce a covenant in a deed, this court observed
that the covenant at issue in that case was included in a majority of the
deeds in a subdivision and was part of a common plan of development.
5011 Community Organization v. Harris, supra, 16 Conn. App. 540. This
court stated: ‘‘The trial court concluded, and we agree, that the restrictions
on the subdivision were created to benefit the lot owners. Thirty-seven of
the forty-four lots comprising the subdivision contained similar restrictions.
Moreover, there was no evidence that [the original grantor] intended to
retain ownership of any part of the tract. It is clear that there was a common
scheme of development in the original subdivision.’’ Id., 540. In the present
case, the original grantor retained a portion of the tract of property conveyed
to the developer and expressly stated that the restrictive covenant at issue
benefitted the original grantor, not the lot owners. Moreover, unlike the
present case, it appears that the covenants at issue in 5011 Community
Organization contained restrictions, not merely reference to restrictions
that appeared in the deed conveying the property to the developer.
Finally, the relevant issue of standing in Prime Locations of CT, LLC,
required this court to determine whether, under a declaration that was a
common scheme of development, individual lot owners had standing to
enforce restrictions against other lot owners. Prime Locations of CT, LLC
v. Rocky Hill Development, LLC, supra, 167 Conn. App. 794. In the present
case, the restriction sought to be enforced by the plaintiffs against the
defendant does not appear in the declaration of restrictions that was
expressly referred to and incorporated by reference in the parties’ deeds
from the developer.
11
Additionally, the defendant argues that the court failed to expressly
resolve the issue of whether her special defense, based on the three year
statute of limitations set forth in § 52-575a, defeated any claim related to
the presence of the Dodge Ram pickup truck. According to the defendant,
the evidence was uncontroverted that the truck was present on her property
for more than three years prior to the time that the plaintiffs commenced
the present action and, thus, the defense applied to defeat the plaintiffs’
claim. In light of our analysis and conclusion in parts I and II A of this
opinion, however, it is unnecessary for us to reach the merits of this addi-
tional argument.
12
The defendant testified that, during the time that she kept chickens on
the property, she kept a rooster and a hen on her property, in the garage,
at 59 Mill Stream Road.
13
We note that the court also observed that ‘‘[t]he defendant testified that
she . . . does not have any plans to return [the chickens] to her property
at 59 Mill Stream Road.’’ Our review of the defendant’s testimony does not
support this observation.